Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie

Gee, it’s good to be back home…

It took 9 and a half hours to get back to home and office after my CLE tour in rural Pennsylvania, an adventure that also featured a malfunctioning transmission and new Garmin GPS that went rogue, took us in circles once and 20 miles in the wrong direction another time. This is why the ProEthics, aka the Marshalls, never take vacations. It’s cheaper and safer to have such disasters at home.

1.  Explain to me, somebody...why Paul Manafort’s conviction on ten charges that occurred before Donald Trump ran for President and that have nothing to do with Russia or the Trump campaign somehow endangers Trump’s Presidency? Why is this significant news? Why is it on the front page? Now, I can see why his acquittal would be big news, and it would raise fascinating questions about the Mueller investigation’s focus and competence, but the convictions? Please explain. Somebody?

Right-wing blogger Liz Shield’s cynical explanation of why Manafort was involved in the investigation at all is beginning to look good to me. Shouldn’t it? She writes,

He was put on trial because he worked for Trump so that the left can interfere with Trump’s presidency by clouding everything he does with the threat of looming criminal investigations. That way the hyenas on the cable news network have something to squeak about on their nightly clown shows and most importantly, so that no one wants to work for Trump because the cost is too high.

Now, Liz unfortunately resorts to an “everybody does it” defense of Manafort himself, which undermines her credibility:

Manafort was charged with being a sleazy political consultant like many, many others who operate inside the beltway. Did I mention almost everyone in the consulting business in the D.C. area is a sleaze bucket?…Manafort is 69 years old and he faces decades of prison time. He has another trial with more charges in Washington, D.C., and that starts next month.The never-Trump maniacs danced around in glee in their sad Twitter reality, but no one, and I mean no one, could withstand the scrutiny of a federal investigation of this magnitude. I’d love to see any of these never-Trump sad sacks come out clean after a probe by a massive army of government lawyers and investigators.

There is nothing wrong with Manafort being charged, convicted and punished. If what Shield says is true, then more sleazy consultants should be investigated and face the same fate.

2. And speaking of “sleaze buckets” and  “never-Trump maniacs danced around in glee”…The plea deal by ex-Trump fixer Michael Cohen is also being hyped absurdly, though it does have something to do with the President, and definitely raises all sorts of ethics issues. The funniest one is whether anything Michel Cohen says has any credibility at all. Astoundingly, Times columnist Bret Stephens wrote that Trump should resign or be impeached after Cohen guilty plea. This is an excellent example of how the resistance is so hungry for impeachment that it leaps at any theory, no matter how dubious. I seriously doubt that Jack the Ripper could be found guilty of a crime based on the testimony of Michael Cohen. Why does Stephens believe him? Because he wants to believe him, that’s all, even though there are few public figures alive with less integrity or trustworthiness. Has Stephens read the Constitution? “High crimes and misdemeanors” is usually believed to mean “while in office.” A pre-election election law violation, even a serious one, would not, or should not, qualify.

The fact that Cohen pleaded guilty to election law violations also does not mean that the government could prove election law violations, by him or the President. I always assumed that Trump paid extortion money/hush money/ non-disclosure money to various women with whom he had illicit relationships. Didn’t you? I assume that he’s done it repeatedly over his entire adult life. I do not see how doing so again in 2016 suddenly becomes an election law violation, and I (and other lawyers) am dubious that such a case can be made.

Furthermore, most federal election law violations result in civil penalties unless they are  accompanied by mens rea, or intent to break the law. If Trump had been authorizing such pay-offs for years, and they were not illegal then, I don’t see why he would know they were illegal in 2016, unless it can be proved that he was so informed. I doubt that he would be so informed, because there is no case I can find where paying to keep a non-crime secret has been treated as a transaction covered by the FEC. Was the Obama  administration’s cover-up, misrepresentation and spin regarding the cause of the Benghazi uprising a violation of election laws? I never heard that theory, even from Fox News.

Meanwhile, the fact that Lanny Davis is representing Cohen while he agrees to cast suspicion on the President’s conduct is officially suspicious. Who is his real client? How odd that a long-time Clinton consiglieri  is helping to engineer Cohen’s attack on Donald Trump. Even if this is not what Davis is doing, his connection and loyalty to the Clintons creates, in my expert opinion, an unwaivable  conflict of interest. It is unreasonable to believe that Davis could advise Cohen independently without being influenced by the impact of Cohen’s actions on the Clintons.

3. Right-wing media, left-wing media.  Police in Iowa announced that the body of missing college student Mollie Tibbetts was found,  and that she was killed by an illegal immigrant who had been in the US for several years. On Fox News, this story was broadcast over the Manafort and Cohen events; everywhere else, it was third, especially the illegal alien component.

On CNN’s Headline News this morning, we learned that the alleged killer was an “undocumented immigrant.” A better example of how dishonest and misleading that left-biased description is could hardly be imagined. “Undocumented” sound like the killer had lost his library card. How is the fact that he is “undocumented” relevant to the murder? “Illegal,” however makes the relevance clear. He was already a law-breaker. He should not have been here, and thus had the law been properly and correctly enforced, Mollie Tibbetts would be alive today.

Zeke Miller, the AP’s White House reporter, re-tweeted a link to the Washington Post’s article about Tibetts’ body being found, and wrote, “Likely coming to a Trump rally near you…. Investigators: Suspect in Mollie Tibbetts death is in custody, subject to immigration detainer.” Yup. And there is nothing wrong with the President calling attention to that at all. Every murder, every crime committed by an illegal immigrant is a political story, because one whole side of the political spectrum wants illegal immigration to be regarded as natural and fair.

56 Comments

Filed under Citizenship, Ethics Train Wrecks, Government & Politics, Journalism & Media, Law & Law Enforcement

56 responses to “Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie

  1. Steve-O-in-NJ

    2. Most likely Davis told Cohen he could keep him from going down as hard as he MIGHT, but then told him “either you sing, and you refuse to accept a pardon, or your family is in danger.” This is the last revenge of the House of Clinton.

  2. Phil Alperson

    Jack – I believe the significance of the Manafort guilty verdicts is that the chances of his cooperating with the Mueller Russia/etc-Gate investigation have increased exponentially.

  3. “He was put on trial because he worked for Trump so that the left can interfere with Trump’s presidency by clouding everything he does with the threat of looming criminal investigations.”

    Yep, barring impeachment, the secondary objective of the insurrectionists is to hamstring the administration from doing the job it was elected to do by constantly keeping it on its heels. The tertiary objective is to cloud all accomplishments with suspicion or to flat out not report on them.

    Perennially awarded moron, Paul Krugman, has even been sowing the seeds of future progressive insurrection by labeling SCOTUS illegitimate for the duration that SCOTUS has Kavanuagh and Gorsuch as members.

  4. Chris Marschner_

    In your post regarding Gulliani’s quote the truth is not the truth I opined that the truth was want one wishes to believe.

    The entire question of whether a payment made by or on behalf of another to obtain an NDA for acts that be be embarrasing is an election law violation begs the question regarding taxpayer funded settlements made to congressional staffers to settle harassment claims by members of Congress. These settlements appear to have similar codicles for non disclosure for the express purpose of avoiding personal embarassment that could influence their reelection bid.

    Michael Avenatti claims his fees are being paid through a crowdfunding site but there appears to be no way to determine if much of those funds that flow through the site are from 10,000 unique people or one person or group. For all anyone knows large sums could becoming from Tom Stier, George Soros, or even the Russians. Mr. Avenatti does not publicise the fact that he claimed to be the originator of “The Apprentice” and sued Trump years ago. He also does not publicise the fact that he is closely tied to Rahm Emmanuel and the Obama’s

    Who exactly is paying Lanny Davis? If Cohen had to take a second mortgage to payoff Daniels where is the money coming from that he needs to pay for the service of the Clinton’s fixer? If he did not then why the bank fraud charge he pleaded to? More importantly, why would any attorney reject a pardon for his client if offerred? This smells.

    My truth is that the women in question had sex with the Donald for financial gain which we know makes them working girls or camp followers. Trump paid them off as he would have even if not a candidate making this a non-issue.

    Avanetti and Davis are simply political operatives working to undermine the president and Mueller is merely but gratuitiously following his implicit directions provided to him by Rosenstein.

    • The entire question of whether a payment made by or on behalf of another to obtain an NDA for acts that be be embarrasing is an election law violation begs the question regarding taxpayer funded settlements made to congressional staffers to settle harassment claims by members of Congress. These settlements appear to have similar codicles for non disclosure for the express purpose of avoiding personal embarassment that could influence their reelection bid.

      Those would not be violations of campaign finance laws.

      • Chris Marschner_

        Michael
        My point was more rhetorical in nature. However, why should such settlements not be subject to public scrutiny unless the elected person wishes that the public not know to protect their image and electability. Without a settlement the victim would seek judicial relief which would become very public very quickly.

  5. Was the Obama administration’s cover-up, misrepresentation and spin regarding the cause of the Benghazi uprising a violation of election laws? I never heard that theory, even from Fox News.

    I doubt there is a plausible-sounding argument claiming so.

    It had been alleged, regarding Cohen, that campaign funds were used to pay off Stormy Daniels.

  6. On CNN’s Headline News this morning, we learned that the alleged killer was an “undocumented immigrant.” A better example of how dishonest and misleading that left-biased description is could hardly be imagined. “Undocumented” sound like the killer had lost his library card. How is the fact that he is “undocumented” relevant to the murder? “Illegal,” however makes the relevance clear. He was already a law-breaker. He should not have been here, and thus had the law been properly and correctly enforced, Mollie Tibbetts would be alive today.

    Zeke Miller, the AP’s White House reporter, re-tweeted a link to the Washington Post’s article about Tibetts’ body being found, and wrote, “Likely coming to a Trump rally near you…. Investigators: Suspect in Mollie Tibbetts death is in custody, subject to immigration detainer.” Yup. And there is nothing wrong with the President calling attention to that at all. Every murder, every crime committed by an illegal immigrant is a political story, because one whole side of the political spectrum wants illegal immigration to be regarded as natural and fair.

    Do these same people call deserters “People playing hooky from work”?

  7. The new revelation on the Mollie Tibbets murder is that the illegal immigrant was employed by a farm that processed him through the federal E-Verify system. They didn’t dispute descriptions of his undocumented status, nor confirm them. Now his lawyer is making statements that he is in the country legally. The left is trying to outline the ties between the farm and the Iowa GOP (I think they’re saying it’s owned by a prominent GOP member, etc.)

    Politicizing it at this juncture is pointless until the flipping & flopping is done.

    • 1:25 p.m.

      An attorney for the man charged with murder in the death of an Iowa college student is claiming the government is wrong in its statements that he is in the country illegally.

      Allan M. Richards, an attorney for Cristhian Bahena Rivera, stated in a court document filed Wednesday that an employer has said Rivera is in the U.S. legally. The document names Craig Lang, a former head of the Iowa Board of Regents who is co-owner of a dairy that employed Rivera. The Lang family said in a statement Tuesday that Rivera’s immigration status had been confirmed by an E-Verify electronic immigration status check.

      • Other Bill

        Latest is that he presented fake identification which was used for the e-verify and that he has no legal status in the U.S.

  8. Matthew B

    “Undocumented” is not just misleading, it is a totally false assertion. If this guy has a job, he’s either working off the books (less likely) or using forged documents (more likely). So he’s stolen an identity, and filled out an I9. (With the IRS complicit as they know it’s a stolen identity. Do you remember when stolen social security numbers was a big deal 20 years ago. It isn’t anymore, because the IRS knows that there are millions of them so they just tack on extra internal numbers to keep people straight.) So he’s committed multiple felonies there. BTW, that’s one of the greevences many have: If I’m caught lying to the IRS, I get into criminal legal trouble, but illegal aliens don’t.

    Iowa doesn’t offer illegal alien driver licenses, so he at least he’s an “undocumented driver” if he drives.

  9. Matthew B

    Also on #3:
    Remember, it is heartless and cruel to use this woman’s death for political reasons and argue against illegal immigration.

    On the other hand, it is A-OK to bring up the politics of gun control after Columbine, Sandy Hook and Parkland.

  10. isolumikko

    “most federal election law violations result in civil penalties unless they are not accompanied by mens rea,”

    One negative too many here, I think, Jack.

  11. I do’t think we can completely divorce Manafort from Trump. Yes, his crimes were committed before he was part of the administration… But it really does, yet again, call in to question the assertion that Trump only hires the best people. Trump’s administration has a microscope on it like no other administration in history, and it would be nice if the people in it were self-aware enough not to be horrible people, at least for a little while (looking at you, Scott Pruit).

    • Agreed.

      I think that assertion by Trump was another ‘word cloud.’ It certainly did not have any relation to the reality…

    • Well, yeah, sure. But not hiring the best people is not even close to a crime.

      • Other Bill

        Oh, it’s an impeachable offense when Trump does it. The same as not governing the way John Brennan wants you to govern is treason.

      • Glenn Logan

        No. Poor judgment, even as President, isn’t a crime. And Trump’s judgmental misadventures, if written down, couldn’t be held in the space it takes to contain my 1973 Encyclopedia Britannica.

    • Glenn Logan

      Indeed. Legally, there is no connection. But Trump’s judgment is surely impacted by this.

      Of course, Trump’s poor judgment is hardly a new revelation, and this does little to make it any worse – it’s like a fart in a hurricane. In fact, it’s hard to imagine anything he could do to make honest people think less of his personal judgment.

      • In fact, it’s hard to imagine anything he could do to make honest people think less of his personal judgment.

        Somewhere, somehow, I see the little voices in Trump’s head turn, sniff the wind, and declare “Challenge ACCEPTED!”

        Thanks Glenn. You’ll get yours one day…

        🙂

    • Was that an attempt to respond to my request for an explanation of why Manafort’s trial is big news, and how it has anything to do with Trump or Russian “interference”?

      • Basically… I mean, obviously it doesn’t, or at least shouldn’t, effect this administration legally, but I don’t think it’s particularly hard to see how some of the casual onlookers could view the issues as connected. Most of Manafort’s illegally unreported gains came from a Russian, and America generally, but especially America’s left is hyperfocused on the Red Scare of 2016… This puts the administration in a place where they have the unenviable duty of attempting to explain how the issues are separate, lest the narrative run away from them.

  12. Other Bill

    Oh, it’s an impeachable offense when Trump does it. The same as not governing the way John Brennan wants you to govern is treason.

  13. #2 – i thought Petraus and others claimed the Obama administration didn’t intentionally lie about the attack.
    That they simply redacted the CIA release for security reasons. And, that even the CIA wasn’t sure what caused the initial attack and mistook it for the egyptian riot (caused by a video).

    nevertheless, Even with years of investigation, the Benghazi incident is still debatable, but hush money by Trump to conceal nefarious activity in order to sway public opinion weeks before an election is not a debatable issue.

    So the question asked on the left: is lying to the public intentionally in order to win an election an impeachable offense? Yes it happened before the election, but it was an action that contributed to the win.

    • Other Bill

      If lying to the public during winning political campaign is an impeachable offense, who’s going to be left in office?

    • Chris Marschner_

      What is not debatable was that some poor schmuck that made a stupid ass video was blamed for the uprising in Egypt and Libya and perp walked by officials for violating his probation for using a computer to make the video.

      Since when does a probation violation warrant national media coverage unless someone on high wants to deflect blame . I call that influencing public opinion

    • “is lying to the public intentionally in order to win an election an impeachable offense?”

      No. Since every single candidate from Lincoln forward has done it.

      Of course, what Trump does is always special. That’s the theory.

  14. Greg

    I read the plea agreement and was mystified. It has been known for months that the National Enquirer paid Woman #1 (I forget her real name) for the exclusive rights to her story and that Cohen paid Woman #2 (Stormy Daniels) for a non-disclosure agreement. Democrats have been claiming that these hush money payoffs were illegal campaign contributions, but that theory is tenuous.

    The mystifying news in the plea agreement was that before the election, Cohen bought the rights to the non-disclosure portion – not the story rights, which the Enquirer kept – of the Enquirer’s agreement by paying the Enquirer’s back their entire cost for the full agreement. Then after the election, Cohen sold the Enquirer the rights to the non-disclosure agreements of both Woman #1 and Stormy Daniels at his own cost, plus a tax gross-up payment that doubled the price to the Enquirer, plus a substantial fee for himself.

    Has anybody offered an explanation for this odd series of payments? Why did the Enquirer sell the Woman #1 rights to Cohen in the first place, since buying them back with a tax gross-up made it much more expensive to them than just keeping the rights to the story? Why did they also buy Stormy Daniels’ NDA from him, again along with a tax gross-up? Why did they pay Cohen a big fixer fee for the trivial amount of work that he performed in buying and selling back the NDA rights? I haven’t yet thought of a good reason why they would do that. The plea agreement says that the buybacks were prearranged before the election, which could arguably be a campaign violation, rather than after the election, which certainly would not be a campaign contribution (although of course we have only Cohen’s word for that). But it never offers any purpose for the buybacks were arranged in the first place.

    Another odd thing about the plea agreement is that Trump has stated publicly that he paid Cohen back for the Stormy Daniels buyout. Reports that I read back when Cohen was arrested said that Cohen had originally complained to many people that Trump had stiffed him and refused to pay him back, but that ultimately Trump had relented and paid him back. So did Cohen get paid twice for the Stormy Daniels rights, once by Trump and another time by the Enquirer?

    In fact, I suspect that Cohen may have been paid three times. Like many people, I have always been suspicious of the fact that the same lawyer represented both women. How did two women who didn’t know anything about each other happen to find their way to the same lawyer, who happens to be a known crook, and who both women claim pocketed more in fees than he disclosed to them? My working theory has been that Cohen had a secret fee-sharing deal with the other lawyer. Cohen found out about the women and then either steered them to the lawyer or steered the lawyer to them so that he and the other lawyer would both make a profit settling the cases. If that’s true, then Cohen got a fee from the other lawyer, a fee from Trump and a fee from the enquirer, all for the same deal.

    I can’t be the only person wondering about these things. Is anybody in the media talking about them? (As I said, I haven’t read or heard anything, so maybe the answers to these questions are known to everybody but me.)

  15. Here is another perspective on Trump.

    https://www.quora.com/Liberals-given-the-current-political-climate-have-your-feelings-about-President-Clintons-Lewinsky-Affair-changed/answer/George-Kleinman-2

    Liberals, given the current political climate, have your feelings about President Clinton’s “Lewinsky Affair” changed?
    Liberals, given the current political climate, have your feelings about President Clinton’s “Lewinsky Affair” changed?

    There is no reason why it should. Clinton violated his marriage vows, and worse he did so with a member of the White House staff, violating a second basic principle of life: never shit where you eat. Beyond that, it was Hillary’s problem, and – as long as Clinton competently performed his duties as president – it was nobody’s business.

    Kenneth Starr engaged in prosecutorial overreach and misconduct. The impeachment of an effective and competent president because he was loath to disclose an affair – spare me the perjury rationalization, he never should have been asked in the first place – angered voters for which the “holier-than-thou” and absurdly hypocritical Republicans paid dearly in the next election.

    Notice that Clinton’s action did not involve paying hush-money to avoid negative publicity in a federal election – a felony. Trump did.

  16. “High crimes and misdemeanors” is usually believed to mean “while in office.” A pre-election election law violation, even a serious one, would not, or should not, qualify.

    Wait, what? If, as many argue, you can’t indict a sitting president (you have to impeach first, then indict) your interpretation would mean that a President-elect could strangle someone to death on the morning of his inauguration, and as long as the the body isn’t discovered until after he takes the oath of office, no one — not the Department of Justice, not the court, not Congress, and not the voters — could remove him from office until his term expires. That sounds too stupid to be correct.

    • Glenn Logan

      Your point is well taken, but I think Prof. Cass Sunstein addressed this quite correctly during the Clinton inquiry:

      The basic point of the impeachment provision is to allow the House of Representatives to impeach the President of the United States for egregious misconduct that amounts to the abusive misuse of the authority of his office. This principle does not exclude the possibility that a President would be impeachable for an extremely heinous “private’ crime, such as murder or rape. But it suggests that outside of such extraordinary (and unprecedented and most unlikely) cases,impeachment is unacceptable.

      Source: http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1074&context=facpubs

      I would generally break it down like this: Malum prohibitum laws broken or discovered by the president in office which are not generally impeachable, unless they go to abuse of executive authority or egregious misconduct that requires immediate redress. Malum in se conduct of a felonious nature would probably meet the “extremely heinous” conduct Sunstein refers to. I would put this as a very general guideline.

      I don’t agree with the idea that there is no presidential personal conduct prior to his taking office that is beyond the reach of impeachment, but I would say that conduct is limited to only the very worst behaviors, such as you mentioned. I think this falls in line with the Founders’ refusal to include such acts as “maladministration” in the list of impeachable offenses. Impeachment must be limited to acts performed as president, or private acts so egregious they cannot be allowed to go unredressed for an entire term. That list should be very short and truly evil.

      But I do agree with the idea the president cannot be indicted while in office. This is a debatable point, but I am persuaded it is correct. A criminal indictment, absent impeachment and removal, would cripple the country and our political system, and might make it impossible for the president to do his duty no matter what his intention. Such and indictment would have virtually the same effect as conviction. Not acceptable, in my view.

      • You make some excellent points, and I think I agree in principle. I’ve heard that at the time, “misdemeanors” had a broader meaning than it does now, and would have included maladministration, but I think it would be entirely reasonable for either the House or the Senate to conclude that the campaign finance crimes Cohen has alleged do not rise to a level that justifies Trump’s removal.

        • Glenn Logan

          I think most scholars would say that the substitution of “high crimes and misdemeanors” was meant to exclude maladministration, since that word was explicitly rejected for reasons of excessive breath.

          I think we can agree about the campaign finance “crimes.” The problem with many such statutes is their breadth, and it’s clear from the founding debates that the authors of our Constitution were trying to explicitly exclude the possibility of impeachment via broad interpretations. Whether they succeeded by including the “high crimes and misdemeanors” phrasing is certainly… debatable.

  17. Other Bill

    So Lanny Davis allowed his client to plead guilty to an election law violation without taking it to trial? If that’s not malpractice, I don’t know what is. It appears as if Davis is working for what he and everyone else thinks should have been the Hillary Clinton DOJ. How could Cohen let himself be represented by Davis?

    • Glenn Logan

      Legal malpractice, maybe, but this isn’t about legality, it’s 100% about politics.

      Look at what’s actually happened here: Davis has convinced Cohen (or Cohen has convinced himself) that the best way out of his current jam is to give the prosecutors what they really want – a way to get at Trump. It is of no moment whether or not the charges would succeed at trial, or especially on appeal.

      The very fact that they will never be subjected to judicial analysis is the main reason the prosecution, and Davis et. al., want them on the record – it gives them a lever by which they think they can shove the president out of office, and they don’t even have to prove the charges in court. If they can get the House to charge him and the Senate to convict, it doesn’t matter if what Trump did was actually a crime, does it?

      How convenient is that for the enemies of the president? They get to allege a “crime,” which will of course be impeachable, that will never be subject to actual trial or judicial review, but only to a political process.

  18. http://reason.com/archives/2018/08/23/trumps-campaign-finance-catch-22

    In the Cohen case, the prosecutors hung their hat on FECA’s definition of “contributions” and “expenditures” as anything spent or contributed “for the purpose of influencing any election.” That’s a pretty broad definition, and certainly it may have been thought that paying hush money to Trump’s old memories would “influence an election.” Thus, they argue, payment of the hush money was subject to limits on the size of contributions used to pay, could not include corporate funds, and had to be reported to the FEC.

    But there is another provision in the statute that prohibits a candidate from diverting campaign funds to “personal use.” “Personal use,” in turn, is defined as any expenditure “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” These may not be paid with campaign funds, even if they are intended to influence the election.

    In passing regulations implementing the “personal use” portion of the statute, the FEC specifically rejected an interpretation that would have allowed campaign funds to be used any time the primary purpose of making a payment was to influence the election. Rather, it insisted that unless the obligation was created as a necessary part of the candidacy, using campaign funds was off-limits. Its goal was to prevent candidates from using campaign funds to pay personal expenses. After all, if campaign contributions can pay for tooth-whitening or buying new clothes for a debate, they appear much more like bribes than constitutionally-protected efforts to fund political speech.

    The upshot is that TV ads, polling, hiring a campaign accountant to comply with federal laws, and renting office space are all examples of expenses that exist only because the person is running for office—they are campaign expenses. But if Trump or some other candidate were to tell his personal lawyers, “I want all the lawsuits against me settled. I think they’re a bunch of B.S., but they’re hurting my candidacy,” the settlements would not be “campaign expenses,” even though the payments were made to “influence an election.”

    Now we can see the dilemma the Trump campaign faced. It could pay with funds from outside the campaign, risking prosecution for failing to use campaign funds or file reports. Or it could pay with campaign funds, risking prosecution for an illegal diversion of campaign funds to personal use. “Heads I win. Tails you lose.” Such are our complex campaign finance laws.

    Did the leak of that Access Hollywood tape “influence the election”?

    Hell, do editorial endorsements constitute “Influenc[ing] the election”?

    The question should not be what constitutes influencing the election.

    The question should be what does not.

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