When Michael Cohen pleaded guilty to crimes surrounding federal election law, he said to Judge Pauley, “I participated in this conduct, which on my part took place in Manhattan, for the principal purpose of influencing the election.” That constituted admissions of a crime, but did it mean that Donald Trump committed crimes as well? Only Trump himself knows, and that’s because of the intent element of the crime.
The statute for this crime defines contribution thusly:
The term "contribution" includes—
any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office;
Principal Purpose
While Mr. Cohen may have made these payments for the main purposes of influencing the election, it is not entirely clear that Donald Trump did likewise. Trump’s behavior indicates he did not.
THE COURT: Mr. Cohen, when you took all of these acts that you've described, did you know that what you were doing was wrong and illegal?
THE DEFENDANT: Yes, your Honor.
That’s from the transcript of Cohen’s plea. Let’s think about if this were true for Trump. If we think then-candidate Trump knew it was illegal, it means he agreed to engage in a federal criminal conspiracy that also included Stormy Daniels, Karen McDougal, their lawyers, their lawyers’ secretaries, etc., as well the spouses, and close confidants of all those actors. This means Trump would have known any of those people could implicate him in these crimes and could use that as a lever against him. Does that seem credible?
Lack of Credibility
What seems just as, if not more, likely, is that Donald Trump paid money to a woman for her silence over a sexual dalliance to conceal the public reporting of a night’s regretful copulation from others (i.e., Melania, Barron, Ivanka, etc.). Of course, there was a benefit to the campaign, or, perhaps better stated, the lack of a negative. Such an ancillary benefit does not, however, make it a crime because the requisite intent element is absent.
Prosecutors, in order to charge Trump with violating campaign finance laws, must then have proof beyond a reasonable doubt that Trump’s motivations were in fact to make a campaign contribution in the first place.
Since Trump himself was a candidate for federal office, even if he did act as Michael Cohen did, knowing his actions were illegal, and undertook them “for the purpose of influencing any election for Federal office” they still would not be covered by the charges Cohen pleaded to. That’s because candidates for federal office are not limited to how much they can spend on themselves. Trump’s criminal liability then would consist of a reporting violation on the spending report, or improperly sourcing the donation.
Good for the Gander?
All of this, of course, presumes that federal election law will be enforced to the letter. Such a course would be a surprising development given how voluminous and dense those regulations are, and how anyone who runs for federal office is subject to them. That other politicians would argue they are strictly applied leads one to think they are woefully ignorant about how 100% compliance is likely impossible. That or perhaps they are massively hypocritical and fantastically shortsighted.
Perhaps they could be all of the above but remember one thing – if you want Trump locked up for this, and you want to be consistent, then you should want Obama, Bush, and both Clintons to be locked up as well.
