Trump might not be impeachable
There is a problem with the campaign-finance-law violation to which former Trump attorney Michael Cohen pleaded.
Cohen said that he paid hush money, at Donald Trump’s direction, to keep two women from publicly discussing alleged affairs Trump. And that the principal reason for the payments was to influence the 2016 presidential race.
According to prosecutors, this amounted to an illegal contribution to Trump’s presidential campaign.
Trump has given varying accounts of his involvement with the hush payments. But as a matter of law, the differences in the accounts, mostly regarding when he knew of the payments, don’t matter.
If what Cohen did violates federal campaign law, then so does whatever Trump did, whether that was directing that the payments be made or providing reimbursement for the payments after the fact. That has some Democrats panting lustily for impeachment. But here is the problem.
The federal campaign law forbids the use of campaign funds for personal use.
Rep. Duncan Hunter, a Republican from San Diego, was recently indicted for doing just that. Prosecutors allege that Hunter and his wife used campaign funds to pay for such things as vacations, school tuition, dental work and theater tickets.
To my knowledge, no one has ever used campaign funds to pay hush money to a mistress and reported it as such. If someone did, I can’t imagine that the Federal Elections Commission would regard it as a legitimate campaign expenditure. Surely it would regard that as personal use of campaign funds, awkwardly so.
It wouldn’t matter if the principal purpose of paying hush money to a mistress was to influence the outcome of an election. Not everything that might influence the outcome of an election is a legitimate or legal expenditure of campaign funds.
The federal definition of a campaign contribution is expansive, and does say that it includes anything of monetary value intended to influence the outcome of an election.
But how can something be considered a campaign contribution if it goes to pay for something that isn’t a legal campaign expense? If the campaign couldn’t do it directly, then how can doing it be regarded as a contribution to the campaign?
This isn’t a bit of pettifogging scraped together in an attempt to exculpate Trump. I expressed exactly the same reservation when John Edwards faced comparable charges flowing from his 2008 presidential bid.
Edwards allegedly arranged for wealthy supporters to give his mistress, with whom Edwards had a child, a ton of money to keep quiet about it.
Edwards was charged with several counts associated with this allegation of arranging an illegal campaign contribution. A jury acquitted him on one count and couldn’t reach a decision on the others. The feds dropped the case.
Some are claiming a distinction between the Edwards and Trump situations. In Edwards’ case, there wasn’t hard evidence that the principal purpose of the hush money was to help his presidential campaign, as opposed to keeping the affair from his wife. In Trump’s case, Cohen has sworn in court that helping the campaign was the principal purpose.
That, however, doesn’t resolve the underlying question of whether something can be regarded as an illegal contribution to a campaign if it was for something the campaign couldn’t do. That question wasn’t litigated in the Edwards case.
The U.S. Supreme Court, however, has pretty consistently frowned on ambiguous political corruption charges. The justices have insisted that proscribed behavior be spelled out and knowable in advance. They might share my problem with declaring something an illegal contribution to a campaign when the campaign couldn’t have done the thing directly.
The judgment Trump will face, however, won’t be legal. It will be political.
The question isn’t whether what Trump did, whatever it was, was illegal. The question is whether it’s impeachable.
I think impeachment was meant to be reserved for dereliction of official duties, which is why I opposed the impeachment of Bill Clinton.
But Republicans didn’t take that view then. It’s doubtful that Democrats will now.