Cohen, Trump, and Campaign Finance Violations

President Trump’s former attorney and “fixer” Michael Cohen pleaded guilty this week to campaign finance violations and multiple counts of tax evasion and bank fraud. In this Q&A, Professor David Sklansky, a former federal prosecutor, discusses the charges and how President Trump may be implicated.

Can you explain the campaign finance violations?

The charges relate to secret payments Cohen facilitated to two women during the presidential election campaign in 2016, to keep them from disclosing their affairs with Donald Trump.  One of the women was the adult film actress Stephanie Clifford, who works under the name Stormy Daniels.  She was paid $130,000.  The other woman was the model Karen McDougal; she received $150,000.  The payment to Karen McDougal came from the National Enquirer, with Cohen’s encouragement and assistance.  Cohen paid Clifford himself, and then got disguised reimbursements from the Trump Organization.

In effect, the payments to Stephanie Clifford and Karen McDougal were contributions to Donald Trump’s campaign:  they were hush money designed to help Donald Trump get elected.  And that violated campaign finance laws, because corporations aren’t allowed to contribute directly to presidential campaigns, and individuals can’t contribute more than $2,700.

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How does Cohen’s admission of guilt on that implicate his client, President Trump?

Trump is directly incriminated.  Cohen said in court that he made the payments at Trump’s direction.

Actually, what Cohen said was that he arranged the payments “in coordination with and at the direction of a candidate for federal office,” but it’s clear that the candidate was Trump.  Likewise, the formal charges to which Cohen pleaded guilty don’t name Karen McDougal or Stephanie Clifford or the Trump Organization and the National Enquirer.  Instead the prosecutors use placeholder names:  “Woman-1,” “Woman-2,” “the Company,” and “Corporation-1.”  But it is obvious who and what are being referred to.

How serious are the campaign finance charges?

They’re serious charges for Cohen, and they’re just as serious for Trump.  Federal law makes each of the payments punishable by up to five years in prison, and someone who orders the payments is as guilty as the person who actually makes them.  Trump isn’t just an unindicted co-conspirator at this point.  He’s an unindicted aider and abettor.

Why does the DOJ have a policy not to prosecute sitting presidents? Is the issue clear in the Constitution?

There’s nothing explicit in the Constitution that says a president can’t be prosecuted while still in office.  In the past, the Department of Justice has taken the view that prosecuting a sitting president would interfere with the president’s ability to carry out his duties under the Constitution, and that the better remedy is impeachment—possibly followed by prosecution once the president leaves office. But Trump is such an unconventional president, and he takes such an unconventional approach to his job, that it’s not clear the old reasoning still applies.

Even though Cohen has admitted his guilt, isn’t there a presumption of innocence for President Trump? Some might argue that Cohen is highly motivated to present himself as useful to Special Counsel Robert Mueller.  How might President Trump get his day in court?

Yes, every criminal defendant is entitled to the presumption of innocence.  So if Trump is ever prosecuted for directing Cohen to commit campaign finance violations, he’d be entitled to have a jury decide whether Cohen is telling the truth.  Or, if Trump is impeached because the payments to Daniels and McDougal—or for any other reason—he’ll be entitled to a trial in the United States Senate.

One thing that’s important to keep in mind, though, is that the charges against Cohen weren’t brought by Mueller.  This case was initiated and is being handled by career prosecutors in the United States Attorney’s Office in Manhattan.  It’s entirely separate from the Mueller investigation that the President has called a “witch hunt.”

Do you have a sense of how this case will play out?  What are likely next steps legally?

Cohen still has to be sentenced—not just for the campaign finance violations, but also for tax evasion and bank fraud charges to which he’s pleaded guilty.  In the meantime, the fact that he’s now pleaded guilty may allow Stephanie Clifford’s lawyer to proceed with a deposition of the President, in a lawsuit arising from a nondisclosure agreement Clifford signed with Trump.  That lawsuit has been on hold while the criminal case against Cohen proceeded.

And don’t forget that Paul Manafort—who directed Trump’s campaign for part of 2016 and who was convicted on Tuesday of tax and bank fraud charges in Alexandria—will be tried again, next month, in the District of Columbia on charges of obstruction of justice and failing to register as a foreign agent.  The Manafort cases are being brought by Mueller’s office.  And, of course, Mueller’s investigation is continuing.

David Alan Sklansky is the Stanley Morrison Professor of Law and Faculty Co-Directory of the Stanford Criminal Justice Center. He is the author of Democracy and the Police (Stanford University Press 2008), and he writes regularly about criminal procedure and law enforcement.