Promoted from the diaries by streiff. Promotion does not imply endorsement.
Regarding the recent prosecution of Michael Cohen — the estranged and incompetent attorney of President Trump who even recorded Trump without his client’s knowledge — there is continuing speculation that Cohen’s guilty plea for violating election law may rub off on the President. I don’t want to get into all the details now about this particular election law issue, which is a sordid tale of hush money, but I would like to point out something that is seldom mentioned these days. I quote University of Iowa law professor Andy Grewal who wrote this over a year ago:
Usually, ignorance of the law is no defense to prosecution. A statute that criminalized, for example, the “willful killing of another with malice aforethought” would apply to someone who, with the requisite intent, killed another person, regardless of whether he was aware of the statute. That is, the statute would be concerned with whether the person “willfully” performed the act of killing, not whether he “willfully” decided to violate the law.**
But FECA, according to the United States Department of Justice, operates differently. Most of FECA’s prohibitions, including those related to contributions/donations … create criminal consequences only when a person “knowingly and willfully” commits a violation of the statute. See 52 U.S.C. 30109(d)(1)(A). And according to the DOJ’s standards, which may differ from the case law’s (more on that later), this heightened mens rea standard means that a person must know that he is breaking the law to trigger a criminal prosecution, and must know about the relevant statutory duty: The “words [‘knowingly and willingly’] of specific criminal intent require proof that the offender was aware of what the law required, and that he or she violated that law notwithstanding that knowledge, i.e., that the offender acted in conscious disregard of a known statutory duty or prohibition.” U.S. DOJ, Federal Prosecution of Election Offenses, p.135 (7th Ed.) (2007) (DOJ Manual).
There is ample reason to believe that Trump did not believe the payment of hush money was illegal, especially if his lawyer (Cohen) did not tell him otherwise. As far as I know, the money came from Trump’s personal fortune, rather than from campaign funds, and was to silence a person (Stormy Daniels) whom Trump had been trying to keep quiet for many years. Many experts are now reasonably arguing that the payment was legal, including former Federal Election Commission Chairman Bradley Smith, as well as former Clinton aide Mark Penn. Even in the unlikely event that Smith and Penn are both wrong, how was Trump supposed to know in 2016 that arguments like those of Smith and Penn were wrong? I recommend the following two pieces by Smith and Penn, respectively:
- Smith, Bradley. “Those payments to women were unseemly, that doesn’t mean they were illegal“, Washington Post (August 22, 2018).
- Penn, Mark. “Cohen’s plea deal is prosecutor’s attempt to set up Trump“, The Hill (August 22, 2018).
I suppose more facts may come out, but I don’t see much chance that President Trump committed any crime here. Maybe he will have to pay a civil fine, which is no big deal and very typical for presidential contenders, but I have not seen any evidence yet to prove a civil infraction, much less a crime. And if there was a civil infraction, it probably did not affect the outcome of the election; as Penn wrote, “given that this payment was in October, it would never have been reported before the election campaign and so, for all intents and purposes, was immaterial as it relates to any effect on the campaign.”