There are two things you need to understand about the latest media obsession:
There is no serious legal case against Donald Trump. It’s a complete fantasy that anything that’s happened could result in his indictment or criminal prosecution. We’ll explain that momentarily, but before we get into that you need to understand the second thing. The second thing is:
Trump’s lack of legal culpability won’t mean a thing if Democrats win control of the House this fall. They will impeach him anyway, for the high crime of being Donald J. Trump.
Let’s get into the matter of why Trump is in no real legal jeopardy. First of all, the media insinuation is that Trump is guilty of violating campaign finance laws with the supposed hush-money payment to Stormy Daniels. If you’re only casually paying attention to this, you might assume this means he used campaign funds to make the payment. That’s actually not what he’s supposedly been implicated for.
The suggestion, rather, is that Trump used his own personal funds to either a) make the payment; or b) reimburse Michael Cohen for making the payment. No campaign funds used. So how could that be a campaign finance law issue? Well that’s where the idea that he committed a crime gets pretty flimsy. The theory is that, because Stormy Daniels’s silence would have benefited Trump’s presidential aspirations, that makes the payment an “in-kind” campaign contribution and should have been reported as such.
That theory, as National Review’s Andrew McCarthy (a former federal prosecutor) explains, has a lot of problems:
Cohen’s convictions would not preclude Trump’s lawyers from arguing that the expenditures at issue were not in-kind contributions. But it should never come to that. The president will not be charged because prosecutors cannot prove beyond a reasonable doubt that he had the required intent to violate the law.
Unlike Cohen, Trump, as the candidate, was not constrained by a dollar-amount limit in what he could spend on his campaign. Unlike Cohen (not to mention John Edwards), Trump is not a lawyer — indeed, he relied on his lawyer, Cohen, to deal with the legal aspects of business he trusted Cohen to conduct. Unlike Cohen, then, Trump did not have pressing reasons to keep campaign-finance regulations at the front of his mind.
When the non-disclosure arrangements were made, Trump may well have been thinking about the impact on his election chances that disclosure of extramarital affairs with a Playboy model and a porn star might have — especially after the infamous Access Hollywood tape emerged. But unlike Cohen, Trump had major concerns that had nothing to do with the election: personal embarrassment, the humiliation of his family, and the blow to his marriage.
All of this is must be weighed because the campaign-finance laws require prosecutors to establish that an accused person “knowingly and willfully” committed a violation. (See FEC Compendium of Federal Election Campaign Laws, Section 30109(d)(1)(A) of Title 52, U.S. Code.) Willfulness is the law’s most burdensome mens rea standard for prosecutors. It comes close to refuting the adage that “ignorance of the law is no excuse.” To prove that a defendant acted knowingly and willfully, the prosecutor must establish beyond a reasonable doubt that (a) he understood his conduct was illegal and (b) he acted with the purpose to disobey the law.
I do not see how the government could meet this demanding burden of proof — not unless there is as-yet-undisclosed evidence that Trump actually paused to consider the possibility that these payments were in-kind campaign expenditures, believed they might well be, yet went through with them anyway.
Actual campaign-finance experts, outside the liberal outrage mob, generally agree: Even if Cohen’s activities are campaign-related — though they probably aren’t — they amount to a Federal Election Commission speeding ticket.
President Donald Trump didn’t violate campaign-finance law; the payments made to Stormy Daniels and Karen McDougal came from his personal finances, not campaign funds, for something he believed was unrelated to the campaign. As the president told Fox News, “They didn’t come out of the campaign; they came from me.”
At the very worst, even if re-characterized to be campaign-related, the “violation” amounts to underreporting relatively insignificant contributions from a candidate to his own campaign.
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Impeachment is a political measure, not a legal one
None of this, of course, excuses the president’s personal behavior if indeed he slept with a porn star and paid her off to keep quiet about it. I have no interest in defending that and I won’t. But this column is about the disposition of the matter in the legal sense, and there is zero chance Donald Trump will be charged with anything here. Even if this was a violation of campaign finance law, which it’s not, something at this level is generally dealt with via a fine. It is not a criminal matter. No one is prosecuted.
But it isn’t even that, which is why it’s so absurd that we’re even talking about this in terms of legality. The media hate Trump so they’re gleefully trumpeting the notion that Michael Cohen “pleaded guilty and implicated the president.” That’s a lovely narrative for them to harp on day after day. But if you actually look at the facts, there is no legal culpability and no legal jeopardy for Donald Trump.
But understand this: It doesn’t matter, at least to the extent impeachment is your concern. Impeachment is a political measure, not a legal one, made available to Congress as a way of removing a president who is guilty of malfeasance in his office. It doesn’t require conviction of a criminal act. It doesn’t even require a criminal charge. Congress and Congress alone decides what constitutes grounds for impeachment, and if a majority of the House votes to impeach, it doesn’t matter what their reason is.
If the Democrats win a majority in the House in November, they will impeach Donald Trump, with the media leading the cheers on a daily basis. They will come up with novel, pseudo-legal arguments involving everything from hush money to Russia to whatever else they can think of. It won’t have to be an intellectually honest case because the media won’t closely scrutinize it.
Vote wisely in November
If Democrats do win a House majority, it will likely be a small one, and they will need every vote they can get to succeed with an impeachment vote. But there will be tremendous pressure on every Democratic House member not to side with the evil monster Donald Trump. They may very well pass the articles of impeachment.
At which point the Republican-controlled Senate will swiftly dispense with the measure and acquit President Trump, who will serve out his term, just as Bill Clinton did. And don’t think for a minute that revenge for the Clinton impeachment isn’t part of what’s motivating this. It is.
But mostly the Democrats just hate Donald J. Trump. And they can’t think of a more satisfying way to vent their rage than impeachment. He will never face real legal jeopardy because he hasn’t broken any laws. But that doesn’t matter to Democrats or the media. Vote wisely in November.
