John Edwards, Donald Trump, and the Criminalization of Politics

In thinking about the potential criminal liability of Donald Trump for campaign finance violations, I time and again return to the prosecution of John Edwards for similar criminal behavior involving whether hush money payments to a mistress need to have been reported as campaign expenditures for the FEC. In a recent National Constitution Center podcast (with Jeffrey Rosen and Brad Smith), Brad made the point that some who support prosecuting Trump now did not support prosecuting Edwards. In response I remarked: “And you know I certainly politically was much closer to John Edwards than to Donald Trump. But I thought that the prosecution made sense to the extent that they could actually make their case. The problem in that case was that one of the donors was dead and the other one was I think over 100 years old and wasn’t available to testify. So you know there’s a problem of proof in that case.”

But after we recorded the podcast, in going back to what I wrote about Edwards at the time of his trial (in a piece Slate titled “Let John Edwards Go”), I expressed more caution about going after Edwards, seeing the prosecution in a larger pattern of the criminalization of politics:

But criminal liability for campaign finance violations should be off the table except in the most concrete and egregious cases. Otherwise, we risk deterring not just the unscrupulous, but also those who want to exercise their First Amendment rights by running for public office or supporting the candidates whom they believe will advance the public good. Even if John Edwards doesn’t deserve our sympathy, his conviction won’t do us any good.

So the question in my mind is whether the Trump situation fits into one of the most “concrete and egregious” situations I described or whether it is part of a larger pattern of the criminalization of politics. And in my mind, it is a bit of both.

To begin with, it is the John Edwards prosecution which itself strengthens the case against Trump. Everyone knew that Edwards was on trial for having donors make payments to his mistress to help fund his campaign. This put Trump and everyone else on fair notice that federal prosecutors were treating such payments as reportable campaign expenditures in certain circumstances. Trump even tweeted about the case at the time. At the very least, the Edwards precedent should have caused Trump to seek advice of counsel on whether payments made to hush up mistresses timed specifically to help his election campaign were illegal.

Not only is the legal theory against Trump stronger because of the Edwards precedent; the facts of the Trump case appear much stronger than the Edwards case as well.  Here there appears to be both testimony of Cohen and people from AMI (the National Enquirer parent company) who have said that they coordinated with Trump to make the payments in order to help Trump’s election chances. There was no corroboration for Edwards but apparently plenty for Trump. And there’s great evidence of consciousness of guilt: the use of the LLC and AMI to launder the payments; the denial for more than a year that the payments were made; the disguising of the reimbursements to Cohen from the Trump Organization as payments for legal services and technical services. This is no paperwork error like Obama or McCain made.

Trump of course would have the ability to show at any trial that he did not have the wilfulness required for this to become a criminal matter, but it looks like there is plenty of evidence  there to give the issue to a jury. The timing of the Daniels payment is particularly damning in proving this was campaign related and not primarily about helping Trump’s personal life. Cohen and Trump refused to pay off Stormy Daniels until October 25, 2016, just before the election and after the release of the “Access Hollywood” tape, when Daniels had threatened to give an interview to a media outlet about their sexual encounter.

And yet…there is an element of truth in Brad saying that some people are latching onto the campaign finance violations as a way of trying to bring down a President they otherwise don’t like. I’ve said in numerous interviews that I have a hard time believing anyone in the House will want to impeach the President if all there is against Trump are these violations. Indeed, in a long thread on Twitter, Marty Lederman makes the case that the campaign finance issue is a distraction from the potentially more serious allegations against the President and the campaign finance charges are unlikely to bring him down. Indeed, even though I think the Edwards precedent put everyone on fair notice that paying hush money can be a campaign expenditure and using excessive or corporate contributions to fund it a campaign finance crime, one can easily imagine the five conservatives on the Supreme Court (who generally dislike campaign regulation) viewing the campaign finance statute much more narrowly should it come down to it.

So the bottom line is that the Edwards precedent gives the prosecutors ample ground to have gone after Cohen and AMI, and at least in theory to go after Trump as well. And the evidence that Trump caused these payments to be made to help his election chances is strong.

But what I wrote in 2012 about fears of the criminalization of politics still holds true. Caution is in order, and it likely will and should take more than this to bring down a President,



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