The sentencing memo filed last week by federal prosecutors against Michael Cohen, who for many years served as President Donald Trump's fixer, had Democrats and news media types aflutter: Would Trump soon be indicted for breaking campaign finance laws? Would Democrats impeach the president over this?
Prosecutors had forced Cohen to admit to making secret hush money payments to two women "in coordination with and at the direction of" Trump. The allegation is that Cohen and Trump ran afoul of campaign finance laws by breaking contribution limits and causing a corporation to make an illegal contribution to conceal a federal candidate's extramarital affairs from voters.
Incoming House Judiciary Committee Chairman Jerry Nadler said on CNN that if Trump were proven to have directed the payments, it would constitute "impeachable offenses." Soon-to-be House Intelligence Committee Chairman Adam Schiff said on CBS News that Trump will "face the real prospect of jail time." Leading Democrats want to impeach and jail their chief political antagonist, and yet it's Republicans who are constantly accused of running a banana republic. But I digress.
The amount in play here is minuscule. One woman received $130,000 and the other $150,000, or about 0.07 percent of all the money Trump spent to win the presidency ($398 million). By comparison, Trump’s campaign spent at least $3.2 million on “Make America Great Again” hats.
There are two ways to handle campaign finance issues — via criminal indictment, a la the Cohen/Trump case, or by administrative fine. The latter is what you get at the Federal Election Commission, where the supposed line dividing the two paths is whether a campaign knowingly crossed lines or just made paperwork mistakes.
Barack Obama did it, too
Case in point: The FEC hit Barack Obama's 2008 campaign with, according to The Washington Post, "among the largest penalties in the agency’s history" when it levied a $375,000 fine for failing "to disclose the identities of donors responsible for $2 million in contributions" and misreporting "the dates of $85 million in other contributions." The Obama people "kept $1.3 million in contributions that were above the legal maximum allowed for a federal campaign, failing to return them within the 60 days required by law. The campaign kept almost $874,000 of those donations until the FEC discovered they were unlawful."
Doing a quick bit of math here, the Obama campaign made mistakes with nearly $90 million, or about 321 times the amount Trump and Cohen were dealing with. Obama supporters say these were paperwork mistakes (oh, to have paperwork this lucrative!) while Trump's antagonists argue his alleged sins are far more sinister.
But let's accept for a moment that some people want to literally jail a presidential candidate for spending $280,000 to hide decade-old sex. The prosecutors' theory — that Cohen and Trump made the payments to influence the outcome of an election — could easily be defeated by Trump in court.
Defeating the prosecutors' theory
First, the idea that Trump was trying to conceal from the world that he cheats on his wives is laughable; his infidelity is part and parcel to the "playboy businessman" image Trump carefully cultivated for decades! Do prosecutors honestly believe that one single voter was unaware of Trump's promiscuity?
They would have to explain to a jury that if voters could have heard from just two more women about their sex with Trump, the outcome of the election would have been different. For goodness sake, Trump once engineered a cover story in the New York Post headlined, "Best sex I've ever had," purportedly words spoken by Marla Maples!
Second, it is highly likely that Trump has been paying women he has slept with (and other people for other reasons) for years as part of nondisclosure agreements. His lawyers will argue that the payments are routine business expenses for a man who has a lot of sex and pays for a lot of silence, whether he’s running for office or not.
Finally, what do you want to bet Trump's actual motivation for making the payments had more to do with keeping Melania Trump from finding out more than any voter? Trump surely has a prenuptial agreement that gets much worse for him if he's unfaithful. Plus, Trump admitted after the election he thought he was going to lose, which caused him to rent a smaller ballroom for his election night party. Trump's lawyers will argue that their client thought his candidacy to be a lost cause, but not his marriage.
Which brings me back to Congressman Nadler. If you want to impeach the president, go for it. But don't insult the Constitution's demand for high crimes and misdemeanors with this campaign finance flimflam.
Scott Jennings is a CNN contributor and partner at RunSwitch Public Relations. This column first appeared in The (Louisville, Kentucky) Courier-Journal. You can follow him on Twitter: @ScottJenningsKY.
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This article originally appeared on Louisville Courier Journal: Donald Trump may cheat and pay off women, but that won't get him impeached