Monday, December 10, 2018

What did Donald Trump do today?

He lied about what is and isn't a crime.

Since Democrats won control of the House, Trump's tweets have become noticeably more defensive, often explicitly taking on the tone of a criminal defendant. That was on display in this morning's Twitter offering:

“Democrats can’t find a Smocking Gun tying the Trump campaign to Russia after James Comey’s testimony. No Smocking Gun...No Collusion.” @FoxNews That’s because there was NO COLLUSION. So now the Dems go to a simple private transaction, wrongly call it a campaign contribution,.......which it was not (but even if it was, it is only a CIVIL CASE, like Obama’s - but it was done correctly by a lawyer and there would not even be a fine. Lawyer’s liability if he made a mistake, not me). Cohen just trying to get his sentence reduced. WITCH HUNT!

While many commentators had fun with Trump's search for a "smocking" gun, the real issue here is Trump's legal analysis. Last week, in issuing a sentencing recommendation for Trump's "fixer" Michael Cohen, prosecutors in the Southern District of New York said that Cohen had "acted in coordination with and at the direction of" Trump. The list of crimes that Trump has been implicated in by his own Justice Department, strictly because of his attempts to hide his extramarital affairs with hush money, include:

  • making contributions in another person's name. Trump did this by "laundering" his hush money payment to porn actress Stormy Daniels through Cohen. (52 U.S. Code § 30122)
  • failure to report contributions. Trump is entitled to pay as much hush money to sex partners as he likes with his own money, but if he does that to influence the election, it is a self-contribution and must be reported, which he never did. (52 U.S. Code § 30104, (a)(6)(b)(i))
  • soliciting illegal contributions. According to federal prosecutors, Trump ordered Cohen to pay Daniels an amount in excess of the limit that Cohen could make as an individual contribution to Trump's campaign. (52 U.S. Code § 30116) It is illegal under any number of federal statues to induce someone to commit a criminal act.

Trump's claim that such acts would be civil infractions—the equivalent of parking tickets—is wrong. Federal criminal penalties for all such acts exist (52 U.S. Code § 30109) and are routinely sought by prosecutors, when it can be shown that the candidates committing them did so knowingly and willfully.

Why is this bad?

  • It's wrong to break the law in order to deceive voters.
  • Presidents are not above the law.
  • This is arguably the least serious indictable felony Trump is thought to have committed in an attempt to get elected.