While the special counsel's investigation into President Donald Trump has not found criminality in election meddling, it "very likely" has an indictment related to campaign finance law in the Southern District of New York, according former federal prosecutor Andrew McCarthy.
"The major takeaway from the 40-page sentencing memorandum filed by federal prosecutors Friday for Michael Cohen, President Trump's former personal attorney, is this: The president is very likely to be indicted on a charge of violating federal campaign finance laws," McCarthy wrote for Fox News.
". . . The point for this day is that the Cohen case in New York City is not about Cohen. The president is in peril of being charged."
McCarthy pointed to language in the special counsel memo stating payments to two women claiming they had an affair with Donald Trump before the campaign were made "in coordination with and at the direction of" then-candidate Donald Trump.
Usually, campaign finance violations are settled by a fine and not felony prosecution, McCarthy noted, pointing to when "Barack Obama's 2008 presidential campaign was guilty of violations involving nearly $2 million — an amount that dwarfs the $280,000 in Cohen's case — the Obama Justice Department decided not to prosecute. Instead, the matter was quietly disposed of by a $375,000 fine by the Federal Election Commission."
"This is not to suggest that the president is without cards to play," McCarthy wrote. "Campaign finance violations have a high proof threshold for intent. President Trump could argue that because there was no spending limit on his contributions, he did not think about the campaign-finance implications, much less willfully violate them.
"There is, furthermore, a significant legal question about whether the hush-money payments here qualify as “in-kind” campaign contributions. There is nothing illegal per se in making a non-disclosure agreement; they are quite common. The criminal law comes into play only if the non-disclosure payment is deemed a donation for purposes of influencing a political campaign.
"Arguably, the payment is not a donation if it was made for an expense that was independent of the campaign – that is, money that would have had to be paid even if there were no campaign.
". . . If the president is charged, I expect he would vigorously argue that the payment was not a campaign contribution."
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