Ever since the news broke that Michael Cohen pleaded guilty to finance laws and swore that candidate Donald Trump directed him to do so, I have been reviewing the morass of rules and laws that govern campaign finance. I have been teaching and practicing criminal law for more than a half century, and yet, I have to acknowledge that I am having difficulty understanding the laws as they relate to the allegations made by Cohen against President Trump. But a few things are clear in this case.
A candidate is free to contribute to his or her own campaign. It also is not criminal for a candidate to pay hush money to women whose disclosures might endanger his campaign. So if candidate Trump paid hush money to his two accusers, there would be no violation of any campaign or other laws. To be sure, if he did so for the purpose of helping his campaign, as distinguished from helping his marriage, his campaign would have to disclose any such contribution, and failure to do so might be a violation of a campaign law, but the payments themselves would be entirely lawful.
{mosads}If, on the other hand, Cohen made the payments by himself, without direction from the president, that would constitute an impermissible campaign contribution from a third party. But if Cohen was merely acting as a lawyer for Trump and advancing the payments, with an expectation of repayment, then it would be hard to find a campaign finance crime other than failure to report by the campaign.
Failure to report all campaign contributions is fairly common in political campaigns in the United States. Moreover, the offense is committed not by the candidate but, rather, by the campaign and is generally subject to a fine. Though it is wrong, it certainly is not the kind of high crime and misdemeanor that could serve as the basis for a constitutionally authorized impeachment and removal of a duly elected president.
Moreover, prosecutors should be reluctant to rely on the uncorroborated word of a defendant who pleaded guilty to lying and defrauding. Thomas Jefferson once observed that a criminal statute, to be fairly enforceable, must be so clear that it can be understood by the average person reading it while running. He did not mean while running for office. He meant that a criminal statute must not be subject to varying reasonable interpretations.
Anyone reading the collection of statutes and regulations that govern elections would immediately conclude, even while sitting, that they do not satisfy this Jeffersonian criteria. Reasonable people can disagree about whether these open ended laws apply to any of the acts and omissions that Cohen alleged against Trump. An overzealous prosecutor could, of course, stretch the words of the accordion like statute to target a political enemy, or read it more narrowly to favor a political friend. If the same morass of laws were being applied to a President Hillary Clinton, civil libertarians would be up in arms about their ambiguity.
As a civil libertarian who voted for and contributed to the Clinton campaign in 2016, I am critical as well of efforts to stretch these laws so as to target a president against whom I voted. The guilty plea of Cohen, coupled with the conviction of Paul Manafort, do not make Trump look good politically. He promised the American people to surround himself with the best advisers, but he surrounded himself with too many people who broke the law, even if he himself was not legally complicit. However, the rule of law demands that we distinguish between political sins and federal felonies. As the record now stands, Trump appears to be guilty of political sins, but not federal felonies or impeachable offenses.
You would never know that if you just watched those cable television channels that are determined to find crimes and impeachable offenses against President Trump without regard to the law or consideration of civil liberties. If one applies a single standard without regard to politics, what I call the “shoe on the other foot” test, there are still large gaps between the plea of guilty of Cohen, on the one hand, and crimes or impeachable offenses against Trump on the other. Until and unless those gaps are filled with credible evidence of criminal behavior by the president, his enemies should be cautious about tolling the death knell for this presidency.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against Impeaching Trump.” He is on Twitter @AlanDersh and Facebook @AlanMDershowitz.