In the News
CNN: Did Cohen plead guilty to something that isn’t a crime?
Even if Donald Trump did direct Michael Cohen to pay off Stormy Daniels and Karen McDougal, he may not have been in violation of election finance laws.
[IFS Chairman and Founder Bradley A. Smith joins Smerconish to discuss the Michael Cohen plea and campaign finance law.]
The New Yorker: Mick Mulvaney Can’t Save Donald Trump From His Own Actions and Lies
By John Cassidy
With his former personal attorney Michael Cohen already having testified that Trump ordered him to make payoffs to women, in violation of campaign-finance laws, the revelation that federal prosecutors have corroborating evidence and other witnesses to this scheme, at American Media, Inc., the parent company of the National Enquirer, caused tremors on Capitol Hill. Although it would be premature to start writing Trump’s obituary, as some of his critics are doing, the situation is too serious for the internal reshuffle he announced on Friday evening to make much of a difference…
To be sure, some experts on campaign-finance laws have expressed doubts about how strong a case brought by the Southern District against Trump would be. “Michael Cohen is pleading guilty to something that isn’t a crime,” Bradley A. Smith, a former chairman of the Federal Election Commission, wrote at the National Review. Citing rulings by the F.E.C. and the Supreme Court, Smith argued that the hush-money payments to McDougal and Daniels don’t satisfy the legal definition of campaign contributions. He added, “Trump should fight these charges ferociously.”
Robert Khuzami, the acting U.S. Attorney for the Southern District, who is leading the Trump-Cohen-A.M.I. investigation, obviously disagrees with this interpretation, and the political damage that his office has already done to Trump is considerable.
National Review: Republicans, Don’t Fool Yourselves – Donald Trump Is in Serious Trouble
By David French
[A] number of Republicans are comforting themselves by sharing Bradley Smith’s essay in these pages that claims Michael Cohen “pled guilty to something that is not a crime.” Smith is undoubtedly an expert in the field, and his argument is clever, but it runs afoul of the relevant language of campaign-finance laws and available judicial precedent.
Smith claims that Trump’s payments represent a “personal” use of funds and thus cannot be considered a campaign contribution. As he notes, “personal use” spending is “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” (Emphasis added.)
Thus, even though you might spend more on a suit because you’re running for office, clothing is a category of expense that would exist in your life regardless of your run for office. Similarly, if you’re a businessman who is engaged in litigation (the example Smith uses), your legal obligation to respond to that litigation would exist regardless of your run for office…
In his essay, Smith argues, “Indeed, it is quite probable that many of those now baying for Trump’s scalp for illegal campaign contributions would be leading a charge to prosecute Trump for illegal ‘personal use’ of campaign funds had he made the payments from his campaign treasury.”
That’s likely correct – and evidence that campaign-finance law is working as intended. In other words, if you’re a campaign-finance lawyer, and a candidate asks your advice on how to buy the silence of a porn star and hide that payment entirely from the American people, your best response should be, “Have you considered not running for office?”
Independent Journal Review: Former FEC Chairman Says Cohen and Trump Didn’t Break Campaign Finance Law
By Sam Dorman
A former chairman of the Federal Election Commission (FEC) – the agency tasked with enforcing campaign finance law – poured cold water on the claim that President Donald Trump and his former lawyer Michael Cohen violated the law by giving hush money to two women just before the 2016 election.
Former chairman Bradley A. Smith… argued that Cohen pled guilty to a crime that he didn’t actually commit.
“Michael Cohen is pleading guilty to something that isn’t a crime,” Smith wrote in National Review.
“Of course, people will do that when a zealous prosecutor is threatening them with decades in prison,” he added. “But his admissions are not binding on President Trump, and Trump should fight these charges ferociously.” …
[A]ccording to Smith, it was an “intuitively obvious fact” that the hush money payments were not campaign contributions.
“The events that give rise to the claim against him are unrelated to the campaign for office,” he said. Smith argued that Trump had “valid, non-electoral reasons” for trying to prevent his alleged former mistresses from going public…
Smith asserted that the prosecution ignored a critical distinction in the law:
Finally, by ignoring these other parts of the statute and its implementing regulations (which carry the force of law), the prosecutors attempt to make the “for the purpose of influencing any election” language a subjective test that would, but for the plea bargain, be decided by a jury. But that is incorrect. The test is intended as an objective test of campaign-related expenditures. 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.
State Policy Network: IFS’s successful amicus support in key First Amendment cases
By Matt Nese
In Lozman v. Riviera Beach, the Supreme Court ruled that the existence of probable cause did not bar Fane Lozman from challenging his arrest as an illegal retaliation against his advocacy on property rights issues. Citing the Institute’s amicus brief, the Court noted the “risk that some police officers may exploit the arrest power as a means of suppressing speech.” USA Today cited that sentence as a key portion of the Lozman decision.
The Institute also filed an important amicus brief in Carpenter v. United States, in which the Supreme Court ruled that police must obtain a warrant before accessing cell phone location data. The Institute’s brief cited the Court’s NAACP v. Alabama decision, a landmark ruling in support of privacy in association preventing the State of Alabama from forcing the NAACP to turn over a list of its members to government authorities. As IFS explained in its brief, this protection for free association would mean little if government could simply track cell phone location data to identify regular attendees at a group’s meetings.
In addition to protecting speakers from retaliation and surveillance, the Institute filed an amicus brief supporting the right of political parties and other organizations to control the procedures by which their leaders are chosen. In a disturbing opinion, the Tenth Circuit Court of Appeals upheld a state law requiring any party wishing to appear on the ballot to accept a new primary election process. Although the court refused to rehear the case, it amended its opinion in a highly unusual move. The change addressed the concern, raised in our amicus brief, that the opinion could be used as precedent to regulate the internal affairs of other advocacy groups.
Fortune: President Trump Renews Claim He Didn’t Tell His Former Lawyer Michael Cohen to Break the Law
By Erik Sherman
Former chairman of the Federal Election Commission Bradley Smith argued in the National Review that the payments to cover up a sex scandal were “clearly not campaign expenditures” and there was “no violation of the Federal Election Campaign Act.”
Smith, quoting the statutory language, said the money was for “personal use,” which means “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.”
The Courts
The Intercept: A Texas Elementary School Speech Pathologist Refused to Sign a Pro-Israel Oath, Now Mandatory in Many States – so She Lost Her Job
By Bart Jansen
A children’s speech pathologist who has worked for the last nine years with developmentally disabled, autistic, and speech-impaired elementary school students in Austin, Texas, has been told that she can no longer work with the public school district, after she refused to sign an oath vowing that she “does not” and “will not” engage in a boycott of Israel or “otherwise tak[e] any action that is intended to inflict economic harm” on that foreign nation. A lawsuit on her behalf was filed early Monday morning in a federal court in the Western District of Texas, alleging a violation of her First Amendment right of free speech…
At the time that Texas enacted the law barring contractors from supporting a boycott of Israel, it was the 17th state in the country to do so. As of now, 26 states have enacted such laws – including blue states run by Democrats such as New York, California, and New Jersey – while similar bills are pending in another 13…
More dangerous attacks on free expression are difficult to imagine. Nobody who claims to be a defender of free speech or free expression – on the right, the left, or anything in between – can possibly justify silence in the face of such a coordinated and pure assault on these most basic rights of free speech and association.
One common misconception is that the First Amendment’s guarantee of free speech only bars the state from imprisoning or otherwise punishing people for speaking, but does not bar the state from conditioning the receipt of discretionary benefits (such as state benefits or jobs) on refraining from expressing particular opinions. Aside from the fact that, with some rare and narrow exceptions, courts have repeatedly held that the government is constitutionally barred under the First Amendment from conditioning government benefits on speech requirements – such as, say, enacting a bill that states that only liberals, or only conservatives, shall be eligible for unemployment benefits – the unconstitutional nature of Texas’s actions toward Bahia Amawi should be self-evident.
Wall Street Journal: Two Business Partners of Former Trump Adviser Michael Flynn Indicted
By Aruna Viswanatha and Dion Nissenbaum
Two business partners of Michael Flynn, the former national security adviser to President Trump, have been indicted by federal prosecutors on charges of illegal lobbying on behalf of the Turkish government, after Mr. Flynn cooperated with investigators on the case.
Bijan Kian and Ekim Alptekin were charged, in an indictment unsealed Monday in federal court in Virginia, with acting in the U.S. as agents of a foreign government. They were also charged with conspiracy and making false statements…
Mr. Flynn is scheduled to be sentenced Tuesday following a guilty plea for lying to the FBI. In a pre-sentencing filing, prosecutors said Mr. Flynn had cooperated extensively with prosecutors and they recommended no jail time.
Congress
Washington Post: New report on Russian disinformation, prepared for the Senate, shows the operation’s scale and sweep
By Craig Timberg and Tony Romm
The report, obtained by The Washington Post before its official release Monday, is the first to study the millions of posts provided by major technology firms to the Senate Intelligence Committee, led by Sen. Richard Burr (R-N.C.), its chairman, and Sen. Mark Warner (Va.), its ranking Democrat. The bipartisan panel also released a second independent report studying the 2016 election Monday…
The first report – by Oxford University’s Computational Propaganda Project and Graphika, a network analysis firm – offers new details of how Russians working at the Internet Research Agency, which U.S. officials have charged with criminal offenses for interfering in the 2016 campaign, sliced Americans into key interest groups for targeted messaging…
Warner said the reports should serve as “a wake up call,” resulting in “some much-needed and long-overdue guardrails when it comes to social media.” Burr said the reports are “proof positive that one of the most important things we can do is increase information sharing between the social media companies who can identify disinformation campaigns and the third-party experts who can analyze them.”
The Russians aimed particular energy at activating conservatives on issues such as gun rights and immigration, while sapping the political clout of left-leaning African American voters by undermining their faith in elections and spreading misleading information about how to vote…
The second report – prepared for the Senate Intelligence Committee by researchers for New Knowledge, Columbia University and Canfield Research – emphasized this aspect of the Russian operation, saying, “The IRA created an expansive cross-platform media mirage targeting the Black community, which shared and cross-promoted authentic Black media to create an immersive influence ecosystem.”
Daily Caller: Google Isn’t To Blame For Anti-Conservative Bias
By Curt Levey
Google CEO Sundar Pichai’s testimony before the House Judiciary Committee on Tuesday was dominated by questions about possible bias against conservatives in the company’s search engines and social media sites. Despite concerns about such bias, I found myself feeling sympathetic about the difficulty Google and its subsidiary YouTube face in satisfying Congress and ordinary Americans about this issue.
“There is a very strong conviction on this side of the aisle that [Google’s] algorithms are written with a bias against conservatives,” said GOP Rep. Steve King of Iowa. His colleagues cited studies, anecdotes and leaked videos and emails seemingly demonstrating an anti-conservative bias in Google’s search results and among its employees.
Democrats on the committee attacked this claim. Incoming Chairman Jerry Nadler of New York led the way, alleging a “fantasy, dreamed up by some conservatives, that Google and other online platforms have an anti-conservative bias.” When Nadler added that discussion of bias distracts from what “should be the focus of today’s hearing. … that Russia engaged in a massive disinformation campaign to influence the 2016 election,” Pichai responded that the “two main ad accounts linked to Russia” spent only $4700.
Notably, none of the Democrats seriously contended that Google or other platforms have an anti-liberal bias. So the truth lies somewhere between the extremes – the Democrats’ view that bias is nonexistent and the contention of GOP Rep. Lamar Smith of Texas, citing a study by Dr. Robert Epstein, that “Google’s bias likely swung 2.6 million votes to Hillary Clinton in the 2016 election.”
Trump Administration
The Hill: Trump: ‘Unfair’ coverage should be tested in courts
By Kyle Balluck
President Trump early Sunday ripped “one sided” and “unfair” media coverage, saying it should be tested in courts.
“A REAL scandal is the one sided coverage, hour by hour, of networks like NBC & Democrat spin machines like Saturday Night Live,” he tweeted.
“It is all nothing less than unfair news coverage and Dem commercials. Should be tested in courts, can’t be legal? Only defame & belittle! Collusion?”
Trump posted the tweet after NBC’s “Saturday Night Live” pondered a world in which the president was not elected in its latest cold open.
The president also knocked the sketch comedy show after its season premiere earlier this year, saying it was “just a political ad for the Dems.”
Corporate Speech
Bloomberg: Liberals Can Hold Corporations Accountable
By Francis Wilkinson
As U.S. political parties diverge ever more distinctly into a defender of the old and the past versus an advocate of the young and the future, corporate America – at least the parts with consumer-facing business – is increasingly two-faced.
To the multi-racial, cosmopolitan younger America with money to spend, it shows the face of the future. Meanwhile, to secure its tax preferences, deregulation and clampdown on labor rights, it spends its political money on the party of Fox News…
But with the liberal grassroots still basking in their midterm election victory, they might want to commit some of their energy in 2019 to naming and shaming the companies that fund the GOP assault on everything from climate science and gun regulation to majority rule.
There are stirrings. New York Times columnist David Leonhardt recently wrote about Walgreens’ role in funding the GOP attack on democracy in Wisconsin, where Republican legislators have been busy undermining the results of the November election by denying power to newly elected Democrats.
On Twitter, liberal writer and activist Judd Legum successfully shamed corporations that had donated to Mississippi Senator Cindy Hyde-Smith, who casually joked of public hangings while running for office in a state notorious for lynchings, and to GOP Representative Steve King of Iowa, who seems eager to be known as the most racist member of the U.S. Congress.
But if liberals want to force more corporations to align their political actions with their self-avowed principles, they’re going to need a sustained campaign. Boycotts worked against advertisers on some of the greasier Fox News programs. (Fox host Tucker Carlson just last week lost another advertiser that’s embarrassed to be associated with him.) But after the fury faded, some of those same advertisers quietly slinked back to Fox.
The States
Detroit News: Protect Michigan nonprofit donors’ privacy
By Sean Parnell
Anonymous donations to charities and other nonprofits are a deeply ingrained part of our nation’s culture of giving, stemming from reasons as varied as religious obligation, a sense of humility, a desire to avoid future solicitations, limiting family strife, and countless others…
Unfortunately not everyone respects the longstanding norm of privacy for nonprofit givers, in particular politicians and activists seeking to target those who disagree with them. In response to this threat, Michigan’s Legislature should take the lead in protecting nonprofit donors by passing Senate Bill 1176, the Personal Privacy Protection Act.
The bill would do nothing to roll back Michigan’s laws mandating disclosure of campaign contributions or inhibit investigations of fraudulent practices by nonprofits. The only thing the Personal Privacy Protection Act does is prevent state and local officials from abusing their power by demanding the donor lists of charities and other nonprofits, as well as prohibit disclosure of personal information connected to a nonprofit that may come into government possession…
There is a long history of people using donor information to have people fired, their businesses boycotted, and worse. This was why the Supreme Court in 1958 ruled in a landmark First Amendment case that the state of Alabama could not require the NAACP turn over its membership lists. Given the current political climate it should hardly come as a surprise that many donors will hesitate to give to a group that others see as controversial if their donation will be made public – and it seems everything is controversial to someone these days.
Detroit Free Press: You won’t find ‘good government’ in GOP’s campaign finance changes
By Daniel Weiner
The Michigan Senate recently passed two bills that would undercut campaign finance law at the voters’ expense. One would prevent the state from requiring “dark money” groups – innocuously-named nonprofits like “Build a Better Michigan” or “Better Jobs Stronger Families”- to say who’s funding them. The other bill would take the job of enforcing campaign finance laws away from the secretary of state and give it to a new commission with an organizational structure known to breed partisan stalemates and inaction…
Senate Bill 1176 would bar state agencies from requiring any entity registered as a nonprofit to disclose its donors unless otherwise required by state campaign finance law…
Michigan law requires disclosure of donors only if a group advocates explicitly for or against a candidate or ballot measure, using words like “voter for,” “support,” or “defeat.” But there is no practical difference between an ad that says “defeat Jane Smith” and one that says “call Jane Smith and tell her to stop hurting Michigan workers.” …
The second bill, Senate Bill 1250, would transfer the power to enforce campaign finance laws from the Secretary of State to a new “Fair Political Practices Commission” evenly divided between Democrats and Republicans, modeled on the Federal Election Commission (FEC). But the perennially gridlocked FEC is the last federal regulator to use as a prototype for a new state agency. (Full disclosure: I used to work there.) …
It’s certainly fair to ask whether campaign finance regulation should be in the hands of a partisan officeholder like the Secretary of State (not that this bothered the Legislature when the Secretary of State was a Republican). But copying a profoundly dysfunctional federal body is not the answer.
