In a series of tweets Thursday, President Trump responded to the sentencing of his former lawyer Michael Cohen and his claims that, as a candidate, Trump directed him to violate campaign finance law by paying “hush money” to his paramours. Cohen’s claims about his role in the payments were false and based on faulty legal premises, said Trump, and made only as an attempt to “embarrass the president and get a much reduced prison sentence.”
On Wednesday, Cohen was sentenced to three years in prison after pleading guilty to a number of crimes. In his statement before the court, Cohen said he directed “hush money” in the form of a nondisclosure agreement to porn star Stormy Daniels at Trump’s direction, which Cohen says was expressly intended to impact the election, thus potentially constituting an unreported campaign expenditure.
“I blame myself for the conduct which has brought me here today, and it was my own weakness and blind loyalty to [Trump] that led me to choose a path of darkness over light,” said Cohen in a tearful statement. “[T]ime and time again I felt it was my duty to cover up his dirty deeds rather than to listen to my own inner voice and my moral compass.”
Along with Cohen’s claims, prosecutors said they reached a non-prosecution agreement with American Media Inc., the parent company of the National Enquirer, which they say Cohen used to silence former Playmate Karen McDougal, who also says she had an affair with Trump.
Trump finally responded to Cohen’s allegations on Thursday by denying that he told Cohen to break the law.
“I never directed Michael Cohen to break the law,” said Trump. “He was a lawyer and he is supposed to know the law. It is called ‘advice of counsel,’ and a lawyer has great liability if a mistake is made. That is why they get paid.”
Trump then refuted the idea that paying off Daniels was a violation of campaign finance law anyhow. “Despite that many campaign finance lawyers have strongly stated that I did nothing wrong with respect to campaign finance laws, if they even apply, because this was not campaign finance,” he wrote.
This is ultimately about Cohen trying to get off easy, said Trump. “Cohen was guilty on many charges unrelated to me, but he plead to two campaign charges which were not criminal and of which he probably was not guilty even on a civil basis,” Trump continued. “Those charges were just agreed to by him in order to embarrass the president and get a much reduced prison sentence, which he did-including the fact that his family was temporarily let off the hook. As a lawyer, Michael has great liability to me!” he tweeted.
“They gave General Flynn a great deal because they were embarrassed by the way he was treated – the FBI said he didn’t lie and they overrode the FBI,” the president added. “They want to scare everybody into making up stories that are not true by catching them in the smallest of misstatements. Sad!” He concluded the tweets with his trademark declaration: “WITCH HUNT!”
While many legal analysts believe Trump could be in some serious legal trouble, as the Washington Examiner’s Byron York highlights, some, particularly on the right, feel that the campaign finance issue has been overblown. York quotes former Federal Election Commission chair Brad Smith on why claims that Trump violated campaign finance law are problematic:
Not everything that is subjectively intended to influence an election is a campaign expenditure. For example, if Trump (or any other businessman running for office) settled lawsuits against the business in order to get them off the table, so that they wouldn’t become campaign issues, those settlements would not be campaign expenses, but would remain personal expenses, payable by Trump or the company sued. That is true even if the suits were deemed totally meritless by Trump’s lawyers and paid solely as nuisance settlements to prevent bad campaign press.
The standard “for the purpose of influencing a campaign” must be read in pari materia with the prohibition in the statute on personal use of campaign funds. That section and its regulations define things that are not campaign expenditures, and personal use includes any obligations that would exist irrespective of the campaign. The obligations to Daniels or others (such as they were) were not created as a candidate. Moreover, even if Trump decided to pay the blackmail in part because he was running for president, in its implementing regulations, the FEC specifically rejected a mixed motive test, i.e. that something would count as a campaign expense if one of multiple motives was to help the campaign. It must exist solely because the candidate is running for office. But Daniels’ blackmail threat exists whether or not Trump was running for office. Clearly, Trump may be more inclined to pay it because he was running for office, but it still existed. Indeed, Daniels has said she was threatened way back in 2012. And if she only came forward after Trump were elected, he might still pay it — yet the campaign would be over. In short, it doesn’t arise solely from the campaign.