The prosecutor is twisting campaign-finance law.
Donald Trump’s wayward counsel, Michael Cohen, was sentenced today as part of a plea bargain with the government. As part of that settlement, Cohen has admitted to criminal violations of federal campaign-finance law and has implicated President Trump in those violations.
The Federal Election Campaign Act holds that an “expenditure” is any “purchase, payment, loan, advance, deposit or gift of money, or anything of value, for the purpose of influencing any election for Federal office.”
Well, no. Or at least not in the way some might presume.
To reach the opposite conclusion, the U.S. Attorney is placing all his chips on the language “for the purpose of influencing an election.”
So what does it mean to be “for the purpose of influencing an election”?
To use a more pertinent example, imagine a wealthy entrepreneur who decides to run for office.
The settlements in this hypothetical are made “for the purpose of influencing the election,” yet they are not “expenditures” under the Federal Election Campaign Act.
But in fact, the contrary rule prevails, because the candidate’s obligation to resolve the business’s lawsuits exists “irrespective” of the campaign.
To this intuitively obvious fact — very few people would think paying hush money is a legitimate campaign expenditure — those eager to hang a charge on Mr. Trump typically respond that he made the payments when he did because of the looming election.
Further clinching the case, in writing its implementing regulations for the statute, the Federal Election Commission specifically rejected a proposal that an expense could be considered a campaign expenditure if it were merely “primarily related to the candidate’s campaign.”
Certainly Mr. Trump had many valid, non-electoral reasons for trying to keep these allegations quiet, most notably family harmony, protecting family members (especially his young son, Baron), and preserving his future viability as a television personality in case he lost the election.
Finally, by ignoring these other parts of the statute and its implementing regulations (which carry the force of law), the prosecutors attempt to make the “for the purpose of influencing any election” language a subjective test that would, but for the plea bargain, be decided by a jury.
When faced with the vague, sweepingly broad “for the purpose of influencing any election” language, the Supreme Court has consistently restricted its reach to brightly defined rules.
In short, Michael Cohen is pleading guilty to something that isn’t a crime. Of course, people will do that when a zealous prosecutor is threatening them with decades in prison. But his admissions are not binding on President Trump, and Trump should fight these charges ferociously.
Many Americans have convinced themselves that Trump is a uniquely dangerous and bad man, such that any available tool should be used to expel him from office. But in that way lies the bigger threat to our democracy and rule of law.
In A Man for All Seasons, Sir Thomas More’s future son-in-law, Roper, states that he would “cut down every law in England” if it would enable him to catch the devil.
We do ourselves no service by distorting and misapplying our campaign-finance laws in the hope of bagging Donald Trump.
Bradley A. Smith — Bradley A. Smith, a former chairman of the Federal Election Commission, is chairman of the Institute for Free Speech and a visiting fellow in the James Madison Program at Princeton.