Case not made … yet

Iagree with James Comey. It would be more meaningful for voters rather than impeachment jurors to cast Donald Trump out of the presidency for which he is demonstrably unfit. Comey didn’t go on to say—and perhaps wouldn’t agree—that a morally disgraceful Trump in the short term is the better of bad bets over a morally unctuous Mike Pence potentially in the longer term. The vice president, should he ascend to the presidency before the next election, would be positioned by the advantage of fresh incumbency to hold the office for the duration of Trump’s term and maybe two of his own. That’s nearly a decade of smarmy self-righteousness. I put that personal preference on the table as context for my position that Michael Cohen’s guilty plea last week in a federal courtroom in Manhattan didn’t quite make the impeachment case. Cohen pleaded guilty to serious personal crimes along with two iffy ones having to do with violating federal campaign contribution laws by arranging to pay two women who otherwise presumably would have said publicly that they’d had sex with Trump. The theory is that the money was intended to protect Trump’s presidential campaign prospects. That would seem to make the money an unlawfully high and unlawfully unreported federal campaign contribution. Cohen said under oath, as required by the plea, that he acted upon Trump’s direction. One of the payments to which Cohen confessed was a promised reimbursement to the publisher of the National Enquirer to buy one of the women’s stories exclusively, and then, having contractually obligated her to be silent to other media, effectively killed the story by never publishing it. That would amount, presumably, to an illegal corporate campaign contribution. Trump, rambling around trying to explain all that, told friendly Fox News that the money actually came from him and was not a campaign expenditure. A few weeks ago, Trump was denying any payment altogether, then, in his typically evolving style, dismissing any payment as a Cohen matter of which he remained unaware. His latest contrivance is that he didn’t know of the payment until “later,” and that he covered the payment himself at that point. I never said Trump wasn’t a liar. I merely said I’d rather not impeach him if we can help it and that prosecutors have not quite nailed him. A former head of the Federal Election Commission, Bradley Smith, wrote an op-ed essay for the Washington Post in midweek saying we’d best proceed cautiously before venturing into a precedent of saying any personal expenditure with a political value amounts to a regulated campaign contribution. Smith wrote that the payments were “unseemly,” but not clearly illegal. He likened them to Trump’s telling a lawyer to settle lawsuits against Trump University because they were nagging his campaign. Would lawsuit settlement payouts be campaign contributions or expenditures? If we’re to have two impeachments in three decades, I’d like at least one of them to be solid and about something other than a chronic masher’s lying about sex. Speaking of lying about sex, there is the matter of the only precedent available. Remember John Edwards, breathtakingly phony impregnator of a young woman while running for president as his wife was dying? Federal authorities charged him with violating campaign contribution limits in that a campaign aide solicited and received money from a rich supporter—who had already maxed out in direct contributions—to maintain the woman in a comfortable lifestyle and keep her quiet. The case ended in a mistrial. The explanation offered at the time was that the jury felt the evidence was unclear that Edwards was directly involved in what was a campaign aide’s transaction. The jury also thought the proper characterization of the payments came down to the unknowable state of Edwards’ mind. Was he wanting to shield his wife from the information, or shield voters, and, if both, in what proportion? (If Edwards had instead paid the National Enquirer to buy the story and spike it, he might be president. It was the Enquirer that broke that story. But Edwards wasn’t a pal of an Enquirer official, like Trump. And Trump’s next evolved position could be that he was only trying to keep the information from Melania.) Could the judge in New York— William Pauley, a Bill Clinton nominee on the late Daniel Patrick Moynihan’s recommendation—have accepted all of Cohen’s pleas except the two agreed-to campaign finance matters, and said he’d need to hold further hearings before accepting those? Yes, he could have, but he didn’t. The prosecutors prevailed on Cohen to make those admissions as part of the deal. He agreed. The judge accepted the plea. So the case is closed. It’s simply not enough to proceed confidently with impeachment. But the other information alluded to in the plea and likely to come in part from Cohen’s further cooperation … that could always raise the threat level of President Pence.