By Andrew C. McCarthy
There is a superficial appeal to the notion that if Cohen is guilty, Trump must be guilty. But of course, such logic must work reciprocally, too. That is, if Trump is innocent, Cohen must have pled guilty to a non-crime.
This theory is championed by some whip-smart lawyers, such as my friend Mark Levin and the eminent Bradley Smith, former chairman of the Federal Election Commission, who wrote a fine Washington Post op-ed on the subject this week. They argue that, despite his guilty plea, Cohen did not violate the campaign-finance laws. The idea is that paying hush money is not an “in-kind” campaign contribution even though the concealment of embarrassing conduct may have been intended, at least in part, to influence an election. Smith explains that paying for silence is more in the nature of a “personal use” expenditure – defined in the law as an obligation or expense that would exist even if the person for whom it is paid were not a candidate in an election campaign.
A candidate is not permitted to divert campaign funds to his personal use. Given that, Smith posits a deft “they get you coming or going” argument. Sure, Donald Trump’s political opponents are now saying he violated campaign-finance laws by failing to disclose the election-eve hush-money payments as campaign expenses. Yet what would have happened if Trump had regarded these payments as campaign expenses and used campaign funds to pay them? Does anyone doubt that many of these same opponents would insist that he violated campaign-finance laws by diverting campaign funds to his personal use?
I am persuaded by Smith’s and Levin’s reasoning. In a perfect world, it would carry the day. But far from a perfect world, ours is one in which this solid interpretation is not accepted by everyone who matters.