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Yes, alleged Trump mistress payoffs are a big deal

Cases and Controversies

Published: September 14, 2018

Our political moment is sufficiently unique to have invented its own news cycle. Call it the Trump Scandal Churn. It starts with new information about one of the many ongoing controversies that flutter like larder moths around the administration of Donald Trump. Very quickly the revelation is met with a vigorous denial by the president, spin by his protectors and some sort of “on the other hand” analysis by political journalists.

The churn generates some general consensus which is accepted by default because by that point in the churn, the next controversy demands attention.

Recently, erstwhile Trump lawyer Michael Cohen confessed to advancing money used to pay campaign-related expenses off the books. Specifically, he paid settlements to enforce two women, Karen McDougall and Stephanie Clifford, who alleged that Trump had affairs with them during his current marriage. The payments, made shortly before the 2016 election, provide consideration for nondisclosure agreements.

The consensus seems to be that this is a relatively minor and technical matter that Democrats would be foolish to use as a basis for impeachment proceedings.

Anytime the subject of impeachment is brought up, a writer must acknowledge that it is a fundamentally political remedy and that it is difficult to imagine this president being removed from office absent a catastrophic drop in his approval ratings.

That said, I dissent from the conventional wisdom. First, the Cohen accusation represents but one strand in a web of Trumpian corruption. But even standing alone, I would like the matter to be treated with a higher degree of seriousness.

The take that the Cohen matter represents a mere technicality appears to arise from the fact that campaign finance law is quite complicated. It’s easy for campaign staff to make mistakes most of which are treated as civil violations for which the campaign is fined.

The fact that campaign finance is complicated does not render every violation of the law a mere technicality. In fact, any regulation of money is necessarily complicated. Money, by design, is fungible: One dollar has the exact same economic and legal significance as another.

Because money is fungible, when the government regulates what people can do with money, it does not simply establish a baseline offense. Along with that offense, the government also must impose bookkeeping and reporting requirements without which it is virtually impossible to enforce the offense.

Try to imagine proving embezzlement in a company that was not required to keep financial records. “Don’t steal from the company” is the baseline rule. Bookkeeping and auditing requirements allow investigators to look into alleged violations.

Michael Cohen did not plead to mere lapses in technical requirements. He admitted to violating the baseline prohibitions.

Our current campaign finance regime began its life in the package of post-Watergate anti-corruption reforms. One core principle informing those reforms and the Supreme Court’s affirmation of them in Buckley v. Valeo is that campaign finance should not offer a mechanism for graft in plain sight. That is, a wealthy benefactor should not be able to use campaign contributions to improperly influence

Toward that end, campaign finance laws place limits on individual contributions, prohibit quid pro quo agreements between candidates and donors and prohibit diverting campaign contributions to private use.

Prohibitions against unlawful influence are useless if a campaign is permitted to keep contributions off the books. Furthermore, the moneys paid to McDougal and Clifford exceeded the campaign spending limits.

A second principle of campaign finance reform, particularly salient after Watergate, held that a campaign should account for how the money was spent in part to ensure that the campaign did not engage in illegal or unethical behavior.

Cohen kept the hush money payments off the books to avoid that kind of transparency. His behavior, which he alleges Trump was aware of and endorsed, violated those core values of our campaign finance regime. As such, his actions rise well above technical violations. Remarkably Trump also admitted to his knowledge and endorsement in an interview on Fox News.

Cohen’s allegations identify the current president as an unindicted co-conspirator in an attempt to disregard the core prohibitions of campaign finance laws. Those who minimize those violations are right about one thing: If the public’s response to these revelations remains “meh,” it becomes difficult to use impeachment power to remedy them.

That’s a troubling reality, compounded by the president publicly airing his violation of the law. While his Fox News interview appears to have been informed by his inability to understand how the law works, his inadvertent confession, if it endures without a response, amounts to one more assault on the rule of law by this president.