It depends on what the meaning of the word ‘is’ is.
President Trump’s longtime attorney Michael Cohen pointed a finger at his old boss Tuesday, saying he committed two campaign finance crimes at the direction of Trump when he arranged six-figure payoffs for women alleging affairs.
“His crime was the president’s crime,” Cohen attorney Lanny Davis, a Democrat who represented former President Bill Clinton in the 1990s, told Fox News Wednesday.
But many legal experts say Cohen didn’t actually commit a campaign finance crime, leading to speculation about why he pleaded guilty, and what his confession may mean for Trump.
The criminal case against Cohen dealt largely with unrelated tax and bank fraud charges. The campaign finance charges were the only ones directly related to Trump, and in pleading guilty he accepted a contentious legal theory that payoffs to porn star Stormy Daniels and former Playboy model Karen McDougal were campaign contributions.
Among election law experts, however, there’s doubt that Cohen committed a crime. Skeptics say silencing the women may have helped Trump during the 2016 campaign, but also protected Trump’s family and company from embarrassment, meaning it wasn’t an election contribution.
Experts point to the failed prosecution against former Sen. John Edwards, D-N.C., whose wealthy supporters gave money to his mistress Rielle Hunter to silence her.
“The big fish here is Trump, and this is a long way toward trying to ‘get Trump,’ so to speak,” said Bradley Smith, a former Republican chairman of the Federal Election Commission.
But Smith, a professor at Capital University Law School who is “not a big fan of Trump,” said Cohen’s plea doesn’t necessarily torpedo the president, given the legal question is unsettled.
“I think it is not a crime to pay a mistress in this way, because it’s not a campaign expense, even though it is something that potentially benefits the campaign,” he said.
Smith said campaign finance offenses are generally dealt with civil fines unless the offense is “knowing and willful,” a difficult standard when precedent is unsettled. “Knowing and willful is what makes it criminal, absent the knowing and willful it’s just a civil violation and you get a fine,” he said.