Election 2020

The Totalitarian Fantasy That Is the SDNY's Campaign Finance Investigation of Trump

Michael Cohen, President Donald Trump's former lawyer, leaves federal court after his sentencing in New York, Wednesday, Dec. 12, 2018. (AP Photo/Craig Ruttle)

I’m going to have to stop reflexively making fun of people who make slippery-slope arguments.

I admit to smirking at activists who warned that Title IX would lead to sex-specific bathrooms being declared discriminatory, transitioning men participating in women’s sports, and mere accusations of sexual assault against men being proof of guilt—no matter how vague the definition.

Now federal prosecutors in the Southern District of New York are making the case that anything that happens to a candidate in his personal life—good or bad—is a possible campaign contribution, even if no campaign funds were spent.

But hey, if a tax cut—government not taking your money—can be called a giveaway

You can find lots of discussion as to the technical aspects of why Michael Cohen arranging hush money for Trump’s bad behavior with sketchy women is not a campaign finance violation (the best of which was written by the great Hans von Spakovsky) and we will touch on some of those. But the frightening thing about the SDNY charging Michael Cohen is that it is a massive expansion of federal power into personal matters.

As Boston lawyer Harvey Silverglate explains in his fine book, Three Felonies a Day: How the Feds Target the Innocent, the complexity of federal law means the feds can target pretty much any ordinary citizen and find something to charge him with (as the Mueller probe seems determined to prove).

If the SDNY’s creative interpretation of campaign finance law is allowed to stand, the Justice Department will have the power to take down pretty much any major candidate they do not like.

In free countries, we investigate crimes. In authoritarian countries, they investigate individuals.

If there is any doubt that the Mueller investigation ceased being a counter-intelligence operation and became a criminal investigation with a specific target in search of a crime, this tangent in the Cohen probe (which was handed to the SDNY by the special counsel) offers absolute proof.

Here’s how insidious this is: In order for Cohen to get a break on his fraud and tax evasion charges, he pled guilty to something that isn’t even a crime—and for which he’s not getting additional jail time—in order to name Donald Trump as a co-conspirator in that “crime.”

Federal prosecutors—and their co-conspirators in the media—get to use Cohen’s conviction (and guilty plea) as proof that it was indeed a crime, and evidence that Donald Trump was a participant in that “crime.”

But if this were all the feds had on Cohen, there is no doubt he would have beaten the rap in the doubtful event it would even have been brought to trial.

And if Trump were ever charged with this, he would beat it in about ten seconds.

Remember John Edwards? He was charged with campaign finance violations after his contributors paid to hush up the affair he had while his wife was being treated for cancer. Those contributors obviously did this to help the Edwards for President effort.  However, the jury barely needed to take a bathroom break before rejecting the feds’ case—largely because there are other reasons for a married man with children to want to conceal illicit sexual behavior. It’s not all about politics.

In Trump’s case, the money came from Trump. That should end the discussion.

And spare me the “hey, they got Capone on tax evasion” comparisons. There were actual crimes being investigated in Chicago, and Capone was the obvious suspect. Those seven members of the Moran gang didn’t just decide to get together and commit mass suicide on Valentine’s Day in 1929, for instance.

Prosecutors making law is even worse than judges making law.

Cohen is officially guilty of a felony—even though that felony is a fantasy—because he pled guilty to it and that plea was accepted by a court.

But that felony was created out of whole cloth by the prosecutors and the process, not by legislation. It was never tested in court— and it was never intended to be.

Kafka, call your office.

Campaign finance law must be restricted to regulating how campaign money is spent, or how money is spent to directly fund election efforts. Period.

In this case, the feds went so far as to put the arm on the National Enquirer, threatening them with a campaign finance violation for not publishing a story! Now, I’m not advocating for this, but by that standard, shouldn’t Hillary Clinton have had to put a value on the in-kind contribution of NBC sitting on the Billy Bush tape until right before the election?

And does the congressional slush fund for paying off sexual harassment complaints mean we now have public funding of elections? Where does that go?

If a prosecutor is considered to be abusing his power by making a statement saying his suspect is probably guilty but we don’t have enough evidence to prove it, then what do you call making up a crime, forcing someone to plead guilty to it, and naming yet another person (your real target) as a party to it?

The separation of politics and state

That doesn’t mean this whole salacious story is beyond public discussion. If I were an editor and we had the first crack at the story, I would assign my whole news division to chase it. It’s news, it’s well within the people’s right to know, and it’s relevant to how they should view the character of their president.

But it’s a political story. And the campaign finance portion of the SDNY’s sentencing brief on Michael Cohen is a political document pretending to be a legal one. When you read all of its flowery language about the need for campaign finance laws to level the playing field… blah blah blah, that becomes very clear.

Which means this is not about prosecutors doing their duty to enforce the law. This is the full force of a U.S. attorney’s office doing opposition research for a partisan cause.

Or is the real purpose to hand Rep. Jerry Nadler and the House Democrats their first article of impeachment for a “high crime and misdemeanor” on a plate, all cooked up for a media feeding frenzy?

Author David Forsmark is president of Winning Strategies, a full-service political consulting firm in Michigan. He is not an attorney, but is experienced in campaign finance and consulted several attorneys in the writing of this column.