Comment Of The Day: “Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie” (#2)

Kudos to Michael Ejercito for flagging an excellent discussion of how election finance laws and the Cohen case intersect. He selected the key section that constitutes the bulk of his Comment of the Day, but by all means, read the whole piece at the link, including this:

The best interpretation of the law is that it simply is not a campaign expense to pay blackmail for things that happened years before one’s candidacy—and thus nothing Cohen (or, in this case, Trump, too) did is a campaign finance crime. But at a minimum, it is unclear whether paying blackmail to a mistress is “for the purpose of influencing an election,” and so must be paid with campaign funds, or a “personal use,” and so prohibited from being paid with campaign funds.

Normally, given this lack of clarity, we would not expect a prosecutor to charge those involved with a “knowing and willful” violation, which means a criminal charge with possible jail time. Typically, at most a civil fine for an unintentional violation would be the response. But prosecutors may be using a guilty plea from Cohen as a predicate for going after the bigger fish, and our simultaneously vague, sometimes contradictory, and incredibly complex campaign finance laws give them that opening.

Of course, it is unethical for prosecutors to use the law to “go after” any citizen, never mind an elected President.

Here is Michael’s Comment of the Day on the post, Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie:

“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.

9 thoughts on “Comment Of The Day: “Morning Ethics Catch-Up, 8/22/18: Manafort, Cohen, and Mollie” (#2)

    • Agreed. Thanks so much, Michael. That was an education in yet another aspect of how complex the whole election mechanism is, and how to recognize how it can be — is being — manipulated.

      • As well as double standards.

        Because I have yet to hear from a person who

        – complains about Russians interfering in the election
        – argues that paying off Stormy Daniels is “influencing the election”

        had complained about the leaking of the Access Hollywood tape, or the leaking of the debate questions.

  1. When the law is as murky as this (as it often is,) the outcome depends entirely on the human deciders; the judge, jury, committee, whatever.

    Herein lies the lurking evil of our new hyper-partisanship: the outcome of this case could depend entirely on the political leanings of the decider. Which is why impeachment depends entirely on how many Ds and Rs sit in Congress- not on the facts.

    In a less divided country, professionals were more often guided by higher principles than politics; morality, loyalty to the profession itself, reputation, conscience. Maybe there are still old-timers in Washington who value all or some of these things more than their feelings about politics, but I think for the most part that ship has sailed.

    Politics have REPLACED those higher principles. If you’re a liberal, then being liberal, and helping liberals, confers automatic righteousness, even if you are the worst sort of scum. As progressives say, “the personal is political.” There is no higher principle than the Party. Or as Hitler said, “The State must be master of all.”

    The Right has been partially restrained from this dangerous path because of the presence of sincere religious faith among many of them. If you truly believe in a Judge who both proscribes and enforces objective morality (and who is always watching) then being honest and faithful to one’s duties is the highest priority; more so than party loyalty. Go back far enough, and both major parties (and plenty of voters) operated under those assumptions more. Now it’s reduced to an element within one party, half of whom probably don’t mean it. The rising Alt-Right is mostly secular and is matching the Left’s tribal-warfare tactics.

    Politics are downstream from culture, which is downstream from worldview/religion. It’s not going to matter who wins if both sides believe that truth is a social construct.

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