President Trump’s longtime attorney Michael Cohen pointed a finger at his old boss Tuesday, saying he committed two campaign finance crimes at the direction of Trump when he arranged six-figure payoffs for women alleging affairs.
“His crime was the president’s crime,” Cohen attorney Lanny Davis, a Democrat who represented former President Bill Clinton in the 1990s, told Fox News Wednesday.
But many legal experts say Cohen didn’t actually commit a campaign finance crime, leading to speculation about why he pleaded guilty, and what his confession may mean for Trump.
The criminal case against Cohen dealt largely with unrelated tax and bank fraud charges. The campaign finance charges were the only ones directly related to Trump, and in pleading guilty he accepted a contentious legal theory that payoffs to porn star Stormy Daniels and former Playboy model Karen McDougal were campaign contributions.
Among election law experts, however, there’s doubt that Cohen committed a crime. Skeptics say silencing the women may have helped Trump during the 2016 campaign, but also protected Trump’s family and company from embarrassment, meaning it wasn’t an election contribution.
[Also read: Trump’s ‘bad week’: Manafort found guilty, Cohen enters plea deal]
Experts point to the failed prosecution against former Sen. John Edwards, D-N.C., whose wealthy supporters gave money to his mistress Rielle Hunter to silence her.
“The big fish here is Trump, and this is a long way toward trying to ‘get Trump,’ so to speak,” said Bradley Smith, a former Republican chairman of the Federal Election Commission.
But Smith, a professor at Capital University Law School who is “not a big fan of Trump,” said Cohen’s plea doesn’t necessarily torpedo the president, given the legal question is unsettled.
“I think it is not a crime to pay a mistress in this way, because it’s not a campaign expense, even though it is something that potentially benefits the campaign,” he said.
Smith said campaign finance offenses are generally dealt with civil fines unless the offense is “knowing and willful,” a difficult standard when precedent is unsettled. “Knowing and willful is what makes it criminal, absent the knowing and willful it’s just a civil violation and you get a fine,” he said.
Smith said it’s conceivable, however, that prosecutors would seek some tangential criminal charge against Trump pegged to Cohen’s conduct, such as a fraud or conspiracy charge.
Outside of court Tuesday, prosecutor Robert Khuzami, deputy U.S. attorney for the Southern District of New York, said Cohen submitted “sham” invoices for reimbursement after acting at Trump’s direction to pay $130,000 to Daniels and to broker payment of $150,000 to McDougal by the Trump-allied National Enquirer’s parent company.
David Warrington, a Republican attorney who formerly worked with the Trump campaign, said he believes prosecutors may have sought Cohen’s plea to the campaign finance counts to help special counsel Robert Mueller’s investigation.
“Slapping on the campaign finance violation, maybe somebody in the prosecutors office thinks that helps them build a narrative in the Mueller investigation, even though this was done by the Southern District of New York,” he said.
Warrington said he could imagine a legal theory from Mueller’s team relying on the Sarbanes–Oxley Act of 2002, a corporate accountability law that he said has been wielded by prosecutors because of a broad prohibition on creating false records.
“I could see the Department of Justice coming up with a theory that allegedly false invoices would amount to a violation of Sarbanes-Oxley, in conjunction with the Federal Election Campaign Act alleged violation Cohen did,” Warrington said. “All of that is a stretch from a legal standpoint, but that doesn’t necessarily stop the Department of Justice from investigating and charging someone under those theories.”
Warrington also believes that the alleged campaign finance crimes aren’t actually crimes, and questions the legal guidance of Davis.
“Lanny Davis had his client plead guilty to a crime that isn’t a crime,” Warrington said. “Who’s Lanny Davis really working for, Michael Cohen or the Clintons?”
Trump made the same argument Wednesday, tweeting, “Michael Cohen plead guilty to two counts of campaign finance violations that are not a crime.”
Warrington said he believes that the U.S. Attorney’s Office in the Southern District of New York, which prosecuted Cohen after a referral from Mueller’s team, would not seek to unilaterally indict Trump, instead deferring to Mueller on the potentially unprecedented action.
Other experts believe the Cohen plea implicating Trump may be intended primarily for political effect, potentially empowering an impeachment push among Democrats, should they regain control of Congress in the November election.
“The idea that this is a campaign contribution or expenditure is highly speculative,” said attorney Cleta Mitchell, a Republican election law expert, saying that she believes Cohen’s plea was not motivated by legal strategy, but by political motivations.
Hans von Spakovsky, a former member of the FEC who works at the conservative Heritage Foundation, said that “I believe the Justice Department would have a hard time prosecuting any such claim” that payoffs were campaign expenses.
Davis did not immediately respond to a request for comment.
Smith, the former Republican FEC chairman who is not a Trump supporter, said he’s concerned about prosecutors’ actions.
“I find the whole thing kind of disturbing – what seems to be almost a determination to use whatever laws we can find to get Trump because a lot of people know Trump’s such a bad guy, he must be violating the law, and even if he’s not, we have to get him anyways,” he said.
