I’m not a Trump fan, so I really enjoy it when Trump is having a bad day, but there are things about the convictions of Cohen and Manafort that bother me.
Political campaigns are mostly free speech, which should be well-protected by the First Amendment, but campaign finance laws attempt to control the money that pays for producing or disseminating this speech. This requires a lot of weird rules, and the results can be bizarre.
For example, the media is exempt, because that’s clearly freedom of the press. So you and I can endorse candidates on our blogs and tell people to vote for them in post after post with little fear of campaign finance laws. However, if you and I buy ads on each other’s blogs saying the same thing, then those are considered independent expenditures, which don’t count as direct campaign contributions, but which are nevertheless required to contain legally mandated disclaimers. (I think they also have to be reported, but I’m not sure because election laws are really complicated.)
There’s an obvious loophole here. If I wanted to donate a million dollars to a candidate, that would be prohibited because it greatly exceeds the limit for campaign contributions. But what if I asked the campaign to tell me how they would spend another million dollars if they had it, and then I went and spent the money myself on exactly what they said they would spend it on? The money never passed through the campaign’s accounts, so it’s not a contribution, right?
Campaign finance regulators have already thought of that trick and headed it off: It’s illegal to spend money to benefit a candidate if you coordinate that expenditure with the campaign. Or to put it another way, if you’re spending money to help a political campaign, it’s illegal to talk about it with the people you’re trying to help. That’s kind of a weird requirement. We’ve gone from free speech to a crime that includes speech as an element.
What if I don’t spend any money? What if I own a bus company and I let the campaign use my buses for free? Campaign finance rules call that an in-kind contribution, and it has to be treated as if it were a financial contribution in the amount of the value of the good or service contributed.
Okay, so what if my best friend Leo is the campaign coordinator, and I pick him up at the airport and then we go have lunch at a restaurant that’s next door to the hall where the candidate is having a rally later that evening? If I’m driving Leo to the restaurant because he’s a campaign staffer, that’s an in-kind contribution. But if I’m driving Leo to the restaurant because I want to have lunch with my friend, that’s not a campaign contribution. It all depends on what reason I have in my head for giving Leo a ride.
That’s pretty weird, right?
It reminds me of a trap in gun laws where it’s legal to buy a gun (if you meet all the qualifications), and it’s legal to sell that gun later (if the buyer meets all the qualifications), but it’s a crime to buy a gun knowing that you will sell it to a specific person later. You can buy the gun intending to keep it for yourself, only to change your mind and sell it later. Or you can buy the gun intending to give it to a specific person as a gift. You can even buy the gun intending to sell it later to some unknown future buyer. But if you know the identity of the person you’re going to sell it to at the time that you buy it, you’re breaking the law. Having that person’s name in your thoughts is an element of the crime.
Cohen paying off Trump’s mistresses leads to similar issues. If he’s paying them off so that Melania doesn’t find out about them, that’s completely legal. But if he’s paying them off to avoid bad press that could harm Trump’s presidential campaign, that’s against the law. It’s easy to imagine Trump and Cohen getting together for one of their regular paying-off-the-mistresses meetings, and everything is going just fine until Trump says, “Hey, this could also help my campaign!” and Cohen says, “Yeah,” and now they’re committing a crime.
There’s nothing unusual about this — that sort of legal logic is well established, and people are prosecuted for it all the time — but you gotta admit it’s kind of a weird way to commit a crime.
Manafort was convicted of more tangible crimes, including five counts of tax fraud and two counts of bank fraud. But he was also found not guilty of 10 other charges. And here’s the part that makes me uneasy: Those 10 acquittals aren’t going to matter much when it comes to sentencing.
That’s because federal sentencing laws allow judges to take a very broad view of the defendant’s conduct when deciding how long to send them to jail. Almost any conduct that led to their appearance before the court can be taken into account for sentencing purposes, including conduct for which a jury has found them not guilty.
That’s one of those bizarre features of that our criminal justice system — civil forfeiture is another — where people who’ve never heard of it tell me I’m stupid because what I’m describing just wouldn’t be allowed. But it is.
So, those 10 acquittals aren’t going to count for much at Manafort’s sentencing because the judge can ignore them and punish Manafort for all the things he was accused of, regardless of what the jury decided.
It ruins my enjoyment of Cohen and Manafort’s downfall when the mechanism used to bring them down seems so petty and corrupt.