In the News
Washington Examiner: Michael Cohen plea turns campaign donations into slush fund for bad behavior
By Bradley A. Smith
One welcome casualty of the #MeToo movement is the practice of using taxpayer funds to settle sexual harassment suits against members of Congress. Over the last two decades, the Congressional Office of Compliance has paid out some $17 million to settle sex harassment suits against lawmakers, but Congress is on the verge of passing legislation to end that practice.
But if the government is no longer going to pay these settlements, who is? If the idea is to hold members accountable, as lead Senate sponsor Amy Klobuchar, D-Minn., says, then we would expect members to pay out of their own pockets…
Not so fast. Almost certainly one reason a member would pay a settlement without a court judgement against him would be to keep the story out of the news, so as to prevent it from negatively affecting his re-election prospects. But if he does so, he may find his local U.S. attorney has something to say about it… [T]he U.S. attorney for the Southern District of New York recently reached a plea bargain with President Trump’s former attorney, Michael Cohen, charging him with felony campaign finance violations… The alleged crime? Cohen, at Trump’s direction, arranged payments from private funds to two women with whom he had had affairs a decade or more before, in order to keep their stories out of the news before the 2016 election.
According to the U.S. attorney, payments to these women are campaign expenditures, because they were intended, at least in part, to influence the 2016 election. So presumably, under the U.S. attorney’s theory of the law, any amounts paid by members of Congress to settle sex harassment claims would similarly be paid with campaign funds…
It would be interesting to ask Klobuchar, as the lead sponsor of this legislation, whether she believes that paying hush money to old lovers, or to settle sex harassment suits, is a valid use of campaign funds.
Fox News: Former FEC commissioners: Trump-Cohen ‘hush’ payments not necessarily a violation
By Adam Shaw
Bradley Smith, a former FEC chairman from 2000-2005, said it was a “relatively easy case” to argue that Trump and Cohen did not commit a campaign-finance violation. He argued that prosecutors should have to prove the payment was only made in connection with his presidential run.
“Even if it was intended to have some influence on the campaign, that’s not the standard,” he told Fox News. “The standard is: ‘Does the obligation exist because you’re running for office?'”
In an article for National Review, Smith wrote that the law defines personal use, rather than campaign use, as spending “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.”
“Mr. Trump’s alleged decade-old affairs occurred long before he became a candidate for president and were not caused by his run for president,” he wrote. “Renting campaign office space, printing bumper stickers and yard signs, hiring campaign staff, paying for polling, and buying broadcast ads are all obligations that exist for the purpose of influencing an election. Paying hush money to silence allegations of decade-old affairs is not.”
Washington Post: The evidence that Trump broke campaign finance laws
By Philip Bump
Some legal experts agree that the payments shouldn’t be considered campaign expenses. Writing for the Wall Street Journal in April, former Federal Election Commission chairman Bradley Smith argued that including hush-money payments as campaign-related expenses was a slippery slope in which all sorts of things could be considered campaign-related and therefore necessarily limited or reportable. Smith noted that constraining the definition of what’s campaign related was intentional on the FEC’s part, to keep candidates from using campaign money as a personal slush fund.
Smith also argued that there were non-campaign-related reasons to want to make the Daniels and McDougal payments, including saving Trump and his family from the personal embarrassment of having the stories made public…
“The law is murky about whether paying hush money to a mistress is a ‘campaign expense’ or a personal expense,” Smith wrote for The Post following Cohen’s guilty plea. “In such circumstances, we would not usually expect prosecutors to charge the individuals with a ‘knowing and willful’ violation, leading to criminal charges and possible jail time. A civil fine would be the normal response.”
Nonetheless, prosecutors moved forward with two charges against Cohen, one for soliciting an illegal contribution from a corporation (AMI) and making an excessive contribution (the $130,000 he paid to Daniels). He pleaded guilty, avoiding a trial where the theory of the prosecutors’ case could be tested against Smith’s objections.
Wall Street Journal: Trump and Campaign Finance
By James Freeman
Upon reflection, some people who defended Mr. Edwards have decided that a potential Trump case makes eminent good sense, especially given the plea agreement by former Trump lawyer Michael Cohen. The Journal’s Julie Bykowicz reported in August on the person who was perhaps Mr. Edwards’ most stalwart advocate:
Ms. Sloan, now an adviser to American Oversight, a group with the goal of “exposing unethical conduct” in the Trump administration, sees the Michael Cohen case differently.
“It’s complicated, and I did have a very clear position on John Edwards,” she said. “In the past, I wasn’t so sure whether these payments were just trying to hide conduct from Trump’s wife, Melania. But that’s not what the evidence shows now.” …
Wait, so paying off a mistress is a legitimate campaign expense?
This is a question raised by Bradley Smith, a Republican former chairman of the FEC. In an interview Tuesday, he challenged people to think about whether a mistress payoff would have been deemed an illegal “personal use” of campaign funds had it been noted in Mr. Trump’s campaign filings…
In August Mr. Smith wrote in an op-ed for the Washington Post:
If a business owner ran for political office and decided to pay bonuses to his employees, in the hope that he would get good press and boost his stock as a candidate, would that be a campaign expenditure, payable from campaign funds?
No, but this doesn’t mean interpretations of the law cannot be perverted for the purpose of prosecuting Mr. Trump. If a judge decides that campaign expenditures no longer mean what they obviously mean-printing yard signs, buying ad time on television channels, etc.-and come to be defined as anything helpful to a politician running for office, some may wonder where it could lead.
National Constitution Center: Cohen, Trump, and Campaign Finance Law (Podcast)
President Trump’s former lawyer Michael Cohen was sentenced to three years in prison after pleading guilty to several crimes, including illegally making hush money payments to two women, Stormy Daniels and Karen McDougal, who claimed they had affairs with then-candidate Trump. On this episode, campaign finance law experts Rick Hasen, a law professor at UC Irvine and co-editor of Election Law Journal, and Brad Smith, former chair of the FEC and founder of the Institute for Free Speech, debate the campaign finance laws at issue, explore precedents like the John Edwards case, and consider possible legal liability for President Trump. They also dive into other current election and campaign finance law issues, including the case involving Donald Trump Jr. Jeffrey Rosen hosts.
Election Law Blog: John Edwards, Donald Trump, and the Criminalization of Politics
By Rick Hasen
In a recent National Constitution Center podcast (with Jeffrey Rosen and Brad Smith), Brad made the point that some who support prosecuting Trump now did not support prosecuting Edwards. In response I remarked: “And you know I certainly politically was much closer to John Edwards than to Donald Trump. But I thought that the prosecution made sense to the extent that they could actually make their case…”…
But after we recorded the podcast, in going back to what I wrote about Edwards at the time of his trial (in a piece Slate titled “Let John Edwards Go”), I expressed more caution about going after Edwards, seeing the prosecution in a larger pattern of the criminalization of politics:
But criminal liability for campaign finance violations should be off the table except in the most concrete and egregious cases. Otherwise, we risk deterring not just the unscrupulous, but also those who want to exercise their First Amendment rights by running for public office or supporting the candidates whom they believe will advance the public good. Even if John Edwards doesn’t deserve our sympathy, his conviction won’t do us any good.
So the question in my mind is whether the Trump situation fits into one of the most “concrete and egregious” situations I described or whether it is part of a larger pattern of the criminalization of politics. And in my mind, it is a bit of both…
And yet…there is an element of truth in Brad saying that some people are latching onto the campaign finance violations as a way of trying to bring down a President they otherwise don’t like.
MLive.com: Washtenaw Dems call on prosecutor to drop case over candidate’s campaign literature
By Ryan Stanton
The Washtenaw County Democratic Party is calling on Prosecutor Brian Mackie to drop criminal charges over a recent Michigan Senate candidate’s campaign literature…
“The charges against Anuja Rajendra are an insult to anyone calling themselves a Democrat, particularly in Washtenaw County,” WCDP Chair Chris Savage said in a statement.
“They are particularly galling considering that she came in third place in the August primary. It is time for Prosecutor Mackie to drop these charges which have no merit.”
The Washtenaw County Prosecutor’s Office alleges Rajendra falsely represented herself as the incumbent senator in two postcards mailed to voters, a violation of state election law…
A hearing in the case is set for January and the American Civil Liberties Union is defending Rajendra, calling the charges unconstitutional and arguing she never intended to mislead voters. The Virginia-based Institute for Free Speech also is urging dismissal of the case…
“It is time for this unfortunate and unnecessary situation to come to an end, once and for all,” [Savage] said. “We join the ACLU and the Institute for Free Speech in imploring Prosecutor Mackie to end his prosecution of Ms. Rajendra today and put this matter to rest.”
PBS NewsHour: What Michael Cohen’s sentencing means for Trump
By Gretchen Frazee
“I think common sense tells us that paying blackmail money is not a campaign expense,” said Brad Smith, a former chairman of the Federal Election Commission who now heads the Institute for Free Speech, a nonprofit that supports loosening restrictions on campaign contributions.
Smith noted that when courts have interpreted campaign finance law in the past, they have defined the key phrase “for influencing an election” narrowly for fear that nearly every action taken during a campaign could be interpreted as an attempt to sway voters.
Trump’s strongest argument against a potential campaign finance charge is that the payments to the women would have been made regardless of the campaign, Smith added. Trump’s lawyer Rudy Giuliani made the same argument in a Fox News interview in May and Trump repeated the defense Thursday. “This was not campaign finance,” he tweeted.
CNN: Despite Trump’s claims, campaign finance violations can be very serious
By Fredreka Schouten
Bradley Smith, a former chairman of the Federal Election Commission, says it’s a stretch to say the payoffs were aimed solely at influencing the election.
Writing in the National Review this week, Smith said Trump had valid, personal reasons to hide the alleged affairs from public view. Among them: protecting his family from scandal and preserving his viability as a TV personality had he lost the election.
Just because an action might benefit a candidate, doesn’t mean its sole purpose is to influence an election, he said.
“A candidate may intend for good toothpaste and soap, a quality suit and a healthy breakfast to positively influence his election,” Smith wrote, “but none of those are campaign expenditures because all of those purchases would typically be made irrespective of running for office.”
The Courts
USA Today: Maria Butina pleads guilty to conspiracy as agent of Russia in USA
By Bart Jansen
Russian national Maria Butina pleaded guilty Thursday to conspiring to act as an agent for the Kremlin without registering in the United States.
Under the plea agreement, Butina said she would cooperate with federal prosecutors. She signed the deal Saturday after U.S. District Judge Tanya Chutkan added a public defender to her legal team Friday.
Although she was charged by the U.S. Attorney’s Office in the District of Columbia and not Justice Department special counsel Robert Mueller’s team, her cooperation could shed light on Moscow’s influence campaign in the United States.
Butina, 30, was charged in a years-long effort to infiltrate political groups on behalf of the Kremlin, including the National Rifle Association. The plea agreement stated that Butina “agreed and conspired, with a Russian government official and at least one other person, for Butina to act in the United States under the direction of (the) Russian official” without notifying the Justice Department as the law requires.
Daily Beast: Get Ready for Mueller’s Phase Two: The Middle East Connection
By Erin Banco
In court filings that are set to drop in early 2019, prosecutors will begin to unveil Middle Eastern countries’ attempts to influence American politics, three sources familiar with this side of the probe told The Daily Beast…
While one part of the Mueller team has indicted Russian spies and troll-masters, another cadre has been spending its time focusing on how Middle Eastern countries pushed cash to Washington politicos in an attempt to sway policy under President Trump’s administration. Various witnesses affiliated with the Trump campaign have been questioned about their conversations with deeply connected individuals from the United Arab Emirates, Saudi Arabia, and Israel, according to people familiar with the probe. Topics in those meetings ranged from the use of social-media manipulation to help install Trump in the White House to the overthrow of the regime in Iran.
Now, according to those same sources, the Special Counsel’s Office is ready to outline what cooperating witnesses have told them about foreigners’ plans to help Trump win the presidency. Two sources with knowledge of the probe said Mueller’s team has for months discussed the possibility of issuing new charges on this side of the investigation.
New York Times: Trump Inaugural Fund and Super PAC Said to Be Scrutinized for Illegal Foreign Donations
By Sharon LaFraniere, Maggie Haberman and Adam Goldman
Federal prosecutors are examining whether foreigners illegally funneled donations to President Trump’s inaugural committee and a pro-Trump super PAC in hopes of buying influence over American policy, according to people familiar with the inquiry.
The inquiry focuses on whether people from Middle Eastern nations – including Qatar, Saudi Arabia and the United Arab Emirates – used straw donors to disguise their donations to the two funds. Federal law prohibits foreign contributions to federal campaigns, political action committees and inaugural funds…
Thomas J. Barrack Jr., a billionaire financier and one of Mr. Trump’s closest friends, raised money for both funds.
“Tom has never talked with any foreign individual or entity for the purposes of raising money for or obtaining donations related to either the campaign, the inauguration or any such political activity,” said Owen Blicksilver, a spokesman for Mr. Barrack. The inaugural committee focus was reported earlier on Thursday by The Wall Street Journal…
In an interview with investigators a year ago, Mr. Barrack said that Mr. Manafort seemed to view the political committee as an arm of the campaign, despite laws meant to prevent such coordination, according to a person familiar with the interview.
Federal election law requires a cooling-off period of at least 120 days before campaign staff members join a political committee backing the same candidate, but Mr. Manafort dispatched two friends from the campaign, Laurance Gay and Ken McKay, to run the operation. A press officer said at the time that the committee violated no rules because the campaign never paid the two men.
Reason: Federal Court: Secretly Recording Government Officials Is a First Amendment Right
By Joe Setyon
The ruling from Chief Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts applies to two cases. The first was a civil lawsuit brought against Boston Police Commissioner Daniel Conley and Suffolk County District Attorney William Gross by the American Civil Liberties Union (ACLU) of Massachusetts on behalf of Boston-area activists René Pérez and Eric Martin. As Slate noted, Pérez and Martin’s specific area of activism involves taking videos of on-duty police officers.
The other suit, meanwhile, was filed against Conley by the Project Veritas Action Fund. Project Veritas, run by its founder and president James O’Keefe, is a conservative activist group known for secretly recording and later publishing videos of both public officials and private groups in an attempt to expose corruption.
In both suits, the plaintiffs argued against a 1968 law known as Section 99 that generally prohibits secretly recording both government workers and private individuals. Those found in violation could be arrested, meaning that secretly recording police misconduct could land you jail. Since 2001, Saris wrote, the district attorney’s office for Suffolk County has filed felony charges relating to Section 99 in at least 11 cases. That’s not all. “During the same period, the Boston Police Department…has applied for a criminal complaint on a Section 99 violation against at least nine individuals for secretly recording police officers performing their duties in public,” Saris wrote…
The parties involved in Saris’ ruling have until January 10 to submit an injunction to the court, based on her ruling, that explains what parts of Section 99 are not constitutional. The Massachusetts attorney general’s office, meanwhile, said it’s looking over Saris’ decision and will decide if it wants to appeal, according to WBUR.
Congress
Center for Responsive Politics: Bipartisan bill would mandate donor disclosure in political ads
By Karl Evers-Hillstrom
The Political Accountability and Transparency Act (H.R. 7267), sponsored by U.S. Representatives Kathleen Rice (D-N.Y.), Mike Gallagher (R-Wis.) and Derek Kilmer (D-Wash.), would require any organization that runs political ads to disclose its top donors and tighten rules preventing candidates from coordinating with super PACs on independent expenditures, among other changes…
The bill, endorsed by several campaign finance reform groups, would require all television, radio and internet political advertisements to display the three largest donors to the organization paying for the advertisement, including super PACs and non-disclosing “dark money” groups…
The bill would clarify that outside groups and campaigns cannot coordinate on communications that mention a candidate starting 120 days before a primary and through the general election. That applies to all types of activity, including mail and canvassing literature.
Under the bill’s language, coordination on outside spending between an outside group and an individual who has not yet announced their candidacy would still be classified as coordination if the individual runs for office afterword…
The bill also aims to end misuse of leadership PACs by clarifying that the “personal use” restriction on campaign funds applies to all committees, including leadership PACs. Issue One and Campaign Legal Center revealed widespread abuse of these PACs in a 2018 report.
