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Yes Rudy, it was a campaign finance violation

I just finished, The Right to Vote:  The Contested History of Democracy in the United States by Alexander Keyssar.  A detailed and well-documented history of suffrage laws in the United States, Keyssar kills the myth that for most of our nation’s existence, voting was not considered a universal right, defended by the federal government.  And that, of course, makes sense.  We needed three amendments to get it right.  

But this post is not about voting rights or Keyssar’s book.  I had planned to write that post this weekend.  But alas, events in the never-ending Oval Office debacle I call, ‘the Trump Administration’ forced my hand.  And so, this post is about campaign finance laws, or more specifically, the one that the Trump campaign broke just days before he won the Presidency.  

Buckley vs. Valeo and Campaign Contributions

Watergate exposed political corruption at the highest levels of our government.  It is disingenuous to suggest that Nixon was the first candidate or officeholder that had ever solicited or accepted large dollar donations in return for access and consideration.  What made Nixon special – it seems – were the amounts involved and that he got caught.  

Post-Watergate, Congress passed a series of reforms in an attempt to reduce political corruption and restore confidence in the citizenry that those responsible for managing the government also played by the rules.  Now, to be clear, the amateur historian here does not know the panoply of reforms that were enacted post-Nixon.  But I know Buckley vs. Valeo (1976).  All political science students know Buckley vs. Valeo.  

This Supreme Court case upheld the legality of limiting an individual’s and a corporation’s campaign contribution.  Legally, you – the reader – can donate up to $2,700 to a single candidate per cycle with a maximum contribution limit of $5.400 per election.  That means you can contribute $2,700 to Candidate A during the primary and if she should go on to the general, you can donate another $2,700.  At the same time, and in the same election, you can donate up to $5,400 to Candidate B.  Up to half during the primary and up to another half during the general.  The contribution limit is per election cycle and candidate. 

A corporation (business, political action committee, any group of people coming together in pursuit of a common objective) may donate up to $10,000 per cycle and candidate.  For example, Target may donate $10,000 ($5,000 in the primary, $5,000 in the general) to dozens of candidates across the country, hedging their bets on who might win.  

I am skipping Citizens United v FEC (2010) and a discussion of dark money.  While this topic may be the single most corrosive issue in our politics today, it is irrelevant to the case at hand.  Plus, it makes me mad and I’m too tired to be mad today.  

Buckley established other precedents that are of equal importance to the Trump case.  First, while limiting individual and corporate contributions, it did not uphold campaign spending limits unless the campaign accepted public financing.  The reasoning?  Candidates had a first amendment right to free speech.  Candidates had the right to speak to the voters about their policies and qualifications.  In order to educate voters, candidates needed money.  Therefore, money equaled speech.  Brilliant.  

What did all of this mean in practice?  In layman’s terms:  Mr. or Ms. Candidate:  you are limited in what you may receive from individual donors, but you can spend as much as you want.  And thus – > our elected representatives spend more than 50% of their time fundraising.  

Second, the Buckley case set campaign finance reporting requirements.  Candidates and elected officials must file, I believe monthly, documentation behind all contributions made to their campaigns and offices.  Mistakes or delays in filing can result in penalties as happened with one of the Obama campaigns.  This is where many campaign finance investigations lead:  simple mistakes and accounting errors.  No ill-intent or attempt to defraud.  Rather, in the heat of a campaign, or in the business of a political office, someone forgets to turn in paperwork on time or a donation does not get recorded. 

That’s not what happened here. 

David Pecker, the National Enquirer, AMI, Michael Cohen, and the President all walked into a bar…..

I will get through this quickly because it is not complicated.  And yes, it will end with the President knowingly and willingly committing a federal campaign finance law in order to win an election. 

  • American Media, Inc. is a publishing house in New York.  It focuses on magazines and tabloids, but it also has a book and entertainment division.  
  • The National Enquirer.  Anyone who has ever been to a grocery store is familiar with the National Enquirer.  If you had paid attention during the 2016 election cycle (which I did not), you would have noticed an uptick in crazy and conspiratorial headlines targeting Trump’s opponents (Ted Cruz’s father and Lee Harvey Oswald, and of course Hillary).  Looking back, this week’s revelations make perfect sense. 
  • David Pecker.  Can I just say something?  OF COURSE, HIS NAME IS DAVID PECKER.  It’s a sex scandal and a key participant, now turned state’s witness, has a surname, “Pecker.”  David Pecker is either a friend or acquaintance of the President (or he was).  He is the National Enquirer’s publisher and CEO of AMI.  He is also purported to have a thick file on stories about Donald Trump that he, until recently, had locked in a safe.  A practice otherwise known as “catch and kill.”  
  • Catch and Kill.  The act of paying or bribing someone, in this case, Karen McDougal, for the right to her story and then, once in possession, locking said story in a safe never to be published.  The payoffs were conditioned on their silence via a non-disclosure agreement.  McDougal received $100,000 from the National Enquirer to keep quiet about an alleged affair with the President over 10 years ago.  She received the money and the option to appear in or write articles for 2 of /AMI’s other magazines.  (Note – Stormy Daniels was a straight payoff by Michael Cohen.  AMI nor Pecker was involved in her case).  
  • Michael Cohen.  The President’s attorney prior to the election.  The media refers to him as the President’s ‘fixer’ meaning that Cohen would “fix” the President’s illegal activities and shield him from prosecution.  I think we are jumping to conclusions – and referring to Cohen in that way, corrodes the principle of “innocent until proven guilty.”  Let’s just call Cohen, President Trump’s attorney prior to his presidency.  As a result of his plea agreements, he was sentenced to 36 months in jail.  His crimes in addition to breaking campaign finance laws were:
    • Tax evasion
    • Bank fraud
    • Wire fraud
    • Lying to Congress

        I am sure that there are more.  

  • The Trump Organization.  The Trump family business.  

Okay – those are the basics.  Now comes the illegal part. 

The Prez has told so many lies, he’s lying about the lies

The best write up explaining the Cohen case including the campaign finance crimes comes from the Southern District of New York’s sentencing memo.  It’s about 40 pages long, but a quick read.  Not only does it lay out in layman’s terms what and how Cohen broke the law, but you will get a really good idea of what the President is probably hiding in his tax records.  I have known this for quite some time, but this case reaffirmed my understanding that our tax policy is based on an “on your honor” system.  The IRS is not funded well enough to audit the wealthy and/or those who know how to evade and obfuscate.  But this too is for another day. 

The payments to these women violated campaign finance laws because they were “in-kind contributions” made for the sole purpose of influencing the election.  Done.

Further, the steps taken to cover up these illicit payments made matters legally worse for the participants.  Cohen, in order to finance the $130,000 payment to Stormy Daniels, took out a home equity line of credit putting one of his homes up as collateral.  He lied on the loan application as to its purpose.  Bam!!  Bank and wire fraud.  Checks cut from the Trump Organization, grossed up to reimburse Cohen for the payoff, plus “something for his trouble” were recorded as technology and retainer expenses.  Bam!!  Some other offense (I’ll have to look it up), this time dragging in whoever signed off on the checks.  

On the AMI side, it has been suggested that McDougal was not the first catch and kill favor done for the President.  Imagine the leverage that Pecker now holds over the President of the United States.  If true, and Trump used Pecker to kill stories about his sexual exploits, then Pecker has an incredible hold over his pal the President.  It does not matter if it’s just sex.  It matters that the President did not want the stories to hit the light of day and Pecker knew it.  

The President and his allies – including Rudy Giuliani – continue to stress that the “campaign did not pay these women,” and that they were not “campaign donations.”  In an interview with FOX late last week, an obviously distressed President repeatedly said that “he would have to check, but he didn’t think that the Trump Organization or he had ever paid that tabloid.”  

Here’s the deal:  it does not matter from where the money came.  It does not matter if the payments were not recorded as a campaign expense.  What matters is that the payments were made in a blatant attempt to influence the outcome of an election and were never reported to the FEC (Federal Election Commission.  That’s it, that’s all, don’t forget to tip your server and good-night. 

The pitiful part of this whole saga is that typically, these crimes are difficult to prove.  The laws are written such that prosecutors have to show intent in order to have a shot at a conviction.  However, in this case, the SDNY have two witnesses (Pecker and Cohen) to corroborate documentation and at least one audio recording of the President approving the scheme to set up a shell company through which the Daniels payoff would be funneled.  Further, the President’s own story toward these payments has changed multiple times since the initial story broke through earlier this year.  He was lying then and he is lying now.  That demonstrates intent.  

Presidential advisors will argue that John Edwards was acquitted for doing the same thing.  But John Edwards’s (former Presidential and Vice-Presidential candidate, Senator from South Carolina, and philanderer) case was completely different.  The “donations” in question were made with no intent to affect an election.  They went to support Edwards’s mistress who was pregnant with their child.  The contributions were not reported because Edwards’s wife was dying of breast cancer and he wanted to spare her the publicity of his affair and love child.  

President Trump has also thrown out Obama’s million dollar fine for campaign finance violations as a “total apples to apples” comparison.  No it isn’t.  According to every expert who has been interviewed (of course, there may be some experts on FOX that disagree), the Obama campaign missed a deadline or failed to report a contribution during the lead up to one of his elections.  When it was caught (either through an audit or the campaign itself), officials were convinced that it was an honest mistake.  No doubt, the Obama campaign was fined a substantial amount, but no one went to jail because the FEC found no ill-intent.   

Here – Michael Cohen is going to jail.  It should be noted, however, that the 36-month sentence is inclusive of all of the charges brought against him and to which he pled guilty.  How much of the 3 years is attributed to campaign finance is unknown to me.  

But again – the source of the contribution does not matter, nor does it matter if it was paid to the campaign fund.  The key is that it was made to influence voters on behalf of a candidate.  David Pecker and AMI received immunity and are now cooperating with the government.  I may feel differently down the road, but at this moment, I am angry about it.  Looking back on those images that appeared on the front page of The National Enquirer, Pecker did a lot more to sway the election toward Trump than pay off Karen McDougal and kill her story about an affair with the candidate.  I suspect a lot of Americans can be influenced by fake stories about Hillary Clinton’s alien love child.  

Despite all the noise, this one is pretty simple.  No Russians.  No spies.  Just old-fashioned hush money payoffs.  The crazy thing is – had Daniels and McDougal gone public, Trump probably would have won anyway.  He could have denied the affairs just as he denied all the other accusations against him after the Access Hollywood tape went public.  Add this to the pile of stupid things that will probably never make sense.  It’s getting so big, I can barely see over it.  


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