The key issue in the matter of the payments by Trump lawyer Michael Cohen to porn star Stormy Daniels and Playboy model Karen McDougal is: Why were the payments made? Did the then-presidential candidate Donald Trump order the payments in order to win the 2016 election specifically or to spare his public reputation in general and to avoid angering his wife, Melania?
The issue of motivation is key.
Andrew McCarthy, writing for¬†National Review, quotes former Federal Elections Commission Chairman Bradley Smith saying that "despite his guilty plea, Cohen did not violate the campaign-finance laws."
"The idea is that paying hush money is not an ‚Äėin-kind' campaign contribution even though the concealment of embarrassing conduct may have been intended, at least in part, to influence an election," McCarthy wrote. "Smith explains that paying for silence is more in the nature of a ‚Äėpersonal use' expenditure defined in the law as an obligation or expense that would exist even if the person for whom it is paid were not a candidate in an election campaign."
In a parallel case, former presidential candidate John Edwards was indicted on six counts for payments made by his aide Andrew Young to Reille Hunter, with whom the candidate had an affair.¬† The key question on which Edwards' guilt hinged was why the money was paid.
According to The Washington Post, Edwards' lawyer, Abbe Lowell, "conceded that Edwards had lied repeatedly about the affair, [but] argued that the deceptions were intended to spare further pain for Elizabeth Edwards not to further Edwards' political career."
The jury in the Edwards case acquitted the former senator on one count and deadlocked on the other five.¬† He was not retried.
McCarthy, a former federal prosecutor says that, "Donald Trump will not face criminal campaign-finance charges. The president will not be charged because prosecutors cannot prove beyond a reasonable doubt that he had the required intent to violate the law."
He argues that though "Trump may well have been thinking about the impact on his election chances that disclosure of extramarital affairs might have, 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."
The federal elections law requires that a candidate "knowingly and willfully" committed a violation.
McCarthy explains that "willfulness¬†is the law's most burdensome¬†mens rea¬†standard for prosecutors. 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."
For a public figure like Donald Trump, it is absurd to think that one can parse his motivations so finely.
Did he pay the women to protect his ratings and compensation from his TV shows? Or to avoid being categorized as a playboy in the public mind? Or to win an election?
Likely all three. But the Edwards case indicates that if the motivation was partially personal and not political, he is not guilty.
In any event, election law is so murky on this subject that it would be hard, if not impossible, to convince a jury that Donald Trump, a non-lawyer, would know whether the expenditure was legal or not.
. . . And it will be even more difficult to explain that to Congress in a potential impeachment proceeding.