On Tuesday, President Trump’s personal attorney and fixer Michael Cohen pled guilty to a variety of charges, including — most importantly for Trump — campaign finance violations. Cohen told investigators that he had spent money in excess of campaign limits to silence Trump’s former paramours Karen McDougal and Stormy Daniels, “in coordination and at the direction of a candidate for federal office.” Cohen stated that the purpose of such silencing was “for the principal purpose of influencing the election.”
This raises a series of uncomfortable questions for President Trump. Here are the most important ones.
1. Is Cohen Telling The Truth? Cohen isn’t exactly known for his honesty — presumably, that’s why Trump hired him in the first place. And the sole accusation that redounds to Trump depends on Cohen’s word, presumably. With that said, federal prosecutors state:
The proof on these counts at trial…[would include] records obtained from an April 9, 2018 series of search warrants on Mr. Cohen’s premises, including hard copy documents, seized electronic devices, and audio recordings made by Mr. Cohen. We would also offer text messages, messages sent over encrypted applications, phone records, and emails. We would also submit various records produced to us via subpoena, including records from the corporation referenced in the information as Corporation One and records from the media company also referenced in the information.
With that said, even if you have the records of Trump telling Cohen to pay off the women, that’s not necessarily enough: you have to show that he did it for the express purpose of shaping the election, and in knowing violation of campaign finance law.
2. Is It A Crime? There is a theory, disseminated chiefly by former FEC chairman Bradley Smith, that Trump committed no crime here because paying off former lovers isn’t actually a campaign expenditure — it’s a personal expenditure. Smith told Mark Levin:
When the FEC wrote the regulation that says what constitutes campaign expenditures and what constitutes personal use, it rejected specifically the idea that a campaign expenditure was anything related to a campaign, and instead says it has to be something that exists only because of the campaign and solely for that reason.
So, for example, if you were to get a haircut and then attribute it to the campaign, that would be personal use and a crime. According to the FEC, however, the relevant test is the “irrespective test”: irrespective of the campaign, would the money have been spent? Here’s how the FEC explains at its website: “if the expense would exist even in the absence of the candidacy or even if the officeholder were not in office, then the personal use ban applies.” Also, gifts are exempt: “On special occasions, campaign funds may be used to purchase gifts or make donations of nominal value to persons other than the members of the candidate’s family.” John Edwards attempted to claim that his donors’ “gifts” to Rielle Hunter were personal expenditures, not illegal campaign expenditures, for example. Trump’s best defense here is likely that he has a long history of paying women to shut up.
3. Can Trump Be Prosecuted? It’s unlikely Trump can be indicted, but not completely out of the realm of possibility. A 2000 memorandum opinion for the attorney general explains that the DOJ policy is not to indict a sitting president:
In 1973, the Department concluded that the indictment or criminal prosecution of a sitting president would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions….We believe that the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.
With that said, the case has never been adjudicated at the Supreme Court level, and the DOJ could still launch an investigation into the Trump allegations, which would mean that Trump could arguably be subpoenaed, putting him in danger of a perjury trap. Futhermore, Michael Avenatti, Stormy Daniels’ lawyer, now wants to depose Trump in her civil case against Trump and Cohen’s Essential Consultants, LLC. That also sets up the groundwork for a perjury trap.
4. Is This Impeachable? Impeachment is a political issue, not a legal one. Though the Constitutional standard is “high crimes and misdemeanors,” that’s left undefined. If the president committed a felony, Democrats would certainly have political grounds to push; but they might push even if he didn’t. The question is whether Trump should be impeached if he violated campaign finance law. Andrew McCarthy at National Review makes the case against it:
The conduct here is not of the egregious nature that rises to high crimes and misdemeanors — it is an infraction committed by many political candidates and often not even prosecuted. More to the point, it is remote from the core responsibilities of the presidency, implicating pre-election actions to conceal alleged indiscretions that occurred a decade earlier. And while the president has denied the indiscretions, it is not like the allegations come as any surprise to the public, who, while well aware of his flaws, elected Donald Trump nonetheless.
This argument is somewhat akin to the “everybody lies about sex” argument Democrats used with regard to Bill Clinton — but Trump has not committed perjury as president yet, so the comparison isn’t completely apt. Furthermore, the allegations themselves are as of yet unproven. Still, there are differences between the accusations against Trump with regard to campaign violations and prior accusations: in this case, Trump’s fixer himself has turned on Trump and testified under oath as to Trump’s criminal activity.
Impeachment has only been used twice in American history: against Andrew Johnson, and against Bill Clinton. Both presidents survived impeachment. Richard Nixon resigned rather than being impeached; he would have gone down because Democrats controlled both the House and the Senate. There's a case to be made that we ought to use impeachment far more often than we do, given that it's the sole constitutional means of curbing criminality in the presidency — but for now, the chances of Trump being removed over a campaign finance infraction by a Republican Congress are approximately zero.
5. What Are The Political Ramifications? Democrats can now claim that they must be handed the House so they can pursue criminality, free of the partisan protections provided to Trump by Republicans. Republicans may respond by stating that Democrats’ only agenda item is Trump’s removal, and that they should retain the House on those grounds. It’s unlikely that the Defend Trump Campaign will drive out the base in numbers equal to the Oust Trump Campaign, which has already been operating in high gear in races across the country. And Republicans could easily pay a long-term price for a continuing, long-term defense of Trump, especially if damning details continue to emerge, in much the same way Democrats paid a significant long-term price for supporting Bill Clinton . Support for Trump’s lack of character and dirty friends could have consequences that stretch far beyond Trump.