WASHINGTON, United States (AP) — After his longtime fixer, Michael Cohen, pleaded guilty to several felony charges, US President Donald Trump is shrugging off the two campaign finance charges as “not a crime.”
The reality? The crimes are real, and Cohen could face time in a very real prison.
Here’s a breakdown of the legal questions around the case involving the president’s former personal attorney.
How did Cohen break the law?
It’s not a crime in the US to pay someone to keep quiet. But the Justice Department says the hush money payments arranged by Cohen to conceal allegations of Trump’s extramarital affairs were actually unreported campaign contributions meant to influence the outcome of the election.
That’s a critical assertion because it makes the payments subject to the country’s campaign finance laws, which restrict how much people can donate to a campaign and bar corporations from making direct contributions.
Though some campaign finance experts suggested before the guilty plea that the payments to two women who say they had sex with Trump could have been arranged for other purposes, such as protecting Trump’s personal reputation, Cohen himself acknowledged that the goal was to affect the election and protect Trump’s candidacy.
The $150,000 payment to former Playboy model Karen McDougal by National Enquirer publisher American Media Inc. and the $130,000 payment to porn star Stormy Daniels far exceeded permissible campaign contribution limits.
Individual contributions to campaigns were capped at $2,700 per election in 2016. That means Cohen could have only lawfully contributed $5,400 directly to Trump’s campaign during primary and general elections.
What are the penalties?
Cohen is charged with “causing an unlawful corporate contribution” and making an excessive campaign contribution.
Since both charges involve large dollar amounts above $25,000, they are felonies that each carry a maximum prison sentence of five years. Cohen also faces a maximum of three years supervised release and a potential fine of $250,000 on each count.
As part of his plea agreement, Cohen’s estimated sentence under federal guidelines on all the charges against him is 46 to 63 months in prison.
What does the government have to prove in a criminal campaign finance case?
For a criminal prosecution, the US Justice Department must prove that a defendant knowingly violated campaign finance laws.
That can be a tall task and is a much more rigorous standard than the one used by the Federal Election Commission, which has civil rather than criminal enforcement authority, and imposes fines in cases where the violation wasn’t deliberate.
It likely would have been difficult for Cohen to have tried to argue that his campaign violations weren’t willful given the allegations that he tried to conceal the purpose of the payments as legitimate legal expenses and used shell companies for the transactions.
In court Tuesday, Cohen told the judge, under penalty of perjury, that he knew he was committing a crime by making the payments. He said he did so “at the direction” of Trump — identified as “Individual-1” in court papers — “for the principal purpose of influencing the election.”
What does Trump say?
Trump’s strategy so far is to downplay the charges — and attack the credibility of his former fixer.
In a series of morning tweets, Trump suggested Cohen was a bad lawyer, accused him of making up “stories in order to get a ‘deal,'” and said he had pleaded guilty to campaign finance violations “that are not a crime.”
He also suggested that former president Barack Obama’s campaign did the same thing, saying, “President Obama had a big campaign finance violation and it was easily settled!”
What’s the difference between the Obama violations and Cohen’s case?
There’s a big difference.
The FEC found during an audit that the 2008 Obama campaign failed to file 48-hour contribution reports in a timely manner for more than 1,200 donations totaling $1.9 million. Such reports have to be filed on donations of $1,000 or more in the last 20 days of an election cycle. The FEC also found the campaign was late refunding some contributions that exceeded the legal limits, and discovered some other reporting errors regarding contribution dates.
The commission fined the campaign $375,000 for the violations, one of the largest fines against a presidential campaign at the time. The campaign was not found to have willfully violated the law.
In Cohen’s case, he admitted he knew he was breaking the law by making the payments. Unlike the Obama case, where the issue was timely reporting, the hush money payments were never disclosed at all on Trump’s campaign filings.
Andrew Herman, a lawyer specializing in campaign finance at law firm Miller & Chevalier, said the two cases are “completely different species.”
“One is a paperwork error. And the other is a conscious attempt to obscure payments made to affect an election,” he said.