These are excerpts from a learned op-ed article in the New York Times. The author, Neal K. Katyal was an acting solicitor general in the Obama administration and is now a law professor at Georgetown and a partner in a law firm.
President Trump needs a new defense.
...
Here’s the new Trump argument, stripped down to its essence: It was clear that he would reimburse Mr. Cohen for those payments to the women, and he’s allowed under Supreme Court precedent to give his campaign as much of his own money as he wants to.
...
The problem is that legally, his argument doesn’t get him where he wants to go. Even though Mr. Trump can give his campaign as much of his own money as he wants to, he can’t ask other people to front the money for him and promise to pay them back later without reporting the arrangement in a timely fashion to the Federal Election Commission. But he didn’t report it, subverting...campaign finance laws, [requiring disclosure of campaign giving and receiving] to the American people before an election — not 20 months later.
...The Trump defenders say reporting violations happen all the time, and that is certainly true. But there are two facets that make the Trump reporting violations criminally significant, as opposed to a misdemeanor oversight or bureaucratic snafu: It appears to have been an intentional end-run around the campaign finance laws and to involve a conspiracy. Each of these points explains why the new Trump argument will fail.
[First,] Criminal law focuses on mens rea, or criminal intent. This means the very same act can be criminal if done with one state of mind and innocent if done with another...Structuring a transaction to intentionally(1)avoid reporting it as required by the law is a very serious offense, not a technical one...particularly true of the secret payments to the two women, which, had they been disclosed before the election...might have altered the outcome.
(1). In homicide jurisprudence "heightened premeditation" will get you this here.
...second...is even more problematic... Prosecutors use the conspiracy doctrine to punish two or more people who merely agree to commit a criminal act. They don’t even have to actually perform the act; they just need to have agreed to do so. The idea behind conspiracy liability is that when two people agree to commit a crime, it’s much worse for society than when a lone actor does.
...[law school riddle]: Why is it that if you sell a joint, you get a six-month sentence, and if your friend sells a joint, he gets a six-month sentence, but if you both agree to sell a single joint, you get a five-year minimum sentence?(2)
(2) This is new knowledge to me. I am almost 100% sure that in my state law conspiracy is not punished more severely; it is grouped with "attempt," which at worst (e.g. in theft cases) is of the same degree felony as the completed act but never of a higher degree. Sheesh. Mothers don't let your babies grow up to be conspirators.
...conspiracy has always been a separate offense,(3) punished independently without calibration to the underlying crime. So conspiracy to sell a joint can be punished the same way as conspiracy to sell a kilo of marijuana.(4)
President Trump needs a new defense.
...
Here’s the new Trump argument, stripped down to its essence: It was clear that he would reimburse Mr. Cohen for those payments to the women, and he’s allowed under Supreme Court precedent to give his campaign as much of his own money as he wants to.
...
The problem is that legally, his argument doesn’t get him where he wants to go. Even though Mr. Trump can give his campaign as much of his own money as he wants to, he can’t ask other people to front the money for him and promise to pay them back later without reporting the arrangement in a timely fashion to the Federal Election Commission. But he didn’t report it, subverting...campaign finance laws, [requiring disclosure of campaign giving and receiving] to the American people before an election — not 20 months later.
...The Trump defenders say reporting violations happen all the time, and that is certainly true. But there are two facets that make the Trump reporting violations criminally significant, as opposed to a misdemeanor oversight or bureaucratic snafu: It appears to have been an intentional end-run around the campaign finance laws and to involve a conspiracy. Each of these points explains why the new Trump argument will fail.
[First,] Criminal law focuses on mens rea, or criminal intent. This means the very same act can be criminal if done with one state of mind and innocent if done with another...Structuring a transaction to intentionally(1)avoid reporting it as required by the law is a very serious offense, not a technical one...particularly true of the secret payments to the two women, which, had they been disclosed before the election...might have altered the outcome.
(1). In homicide jurisprudence "heightened premeditation" will get you this here.
...second...is even more problematic... Prosecutors use the conspiracy doctrine to punish two or more people who merely agree to commit a criminal act. They don’t even have to actually perform the act; they just need to have agreed to do so. The idea behind conspiracy liability is that when two people agree to commit a crime, it’s much worse for society than when a lone actor does.
...[law school riddle]: Why is it that if you sell a joint, you get a six-month sentence, and if your friend sells a joint, he gets a six-month sentence, but if you both agree to sell a single joint, you get a five-year minimum sentence?(2)
(2) This is new knowledge to me. I am almost 100% sure that in my state law conspiracy is not punished more severely; it is grouped with "attempt," which at worst (e.g. in theft cases) is of the same degree felony as the completed act but never of a higher degree. Sheesh. Mothers don't let your babies grow up to be conspirators.
...conspiracy has always been a separate offense,(3) punished independently without calibration to the underlying crime. So conspiracy to sell a joint can be punished the same way as conspiracy to sell a kilo of marijuana.(4)
(3) Not so in state court!
(4) I find that to be seriously fuck-ed up-ed.
Why would the law be written that way?(5)
(5) I do not find the law's answers compelling. It's the law! I trust this guy on all of this, I just find it tres fucked up.
That is why the latest Trump defense has no viability.(6)His defenders say there is no precedent for a campaign finance reporting violation being punished as a serious felony. Even if that claim were true, and it isn’t, they are looking at the wrong precedents. After all, Mr. Cohen has pleaded guilty to making or facilitating illegal campaign contributions and has said the president directed him to do so, suggesting that Mr. Trump was a co-conspirator in those crimes. And even assuming we were dealing with just a reporting violation, the right precedents are the thousands of cases in America where even low-level crimes have been severely punished because they involve intentional conspiracies.
(6) Trump, show this to Giuls, okay? Better, show it to a good lawyer.
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... It would be a huge mistake for the president to rely on assurances from his legal team(7) that what he did was ordinary and not prosecutable. Rather, if the Cohen allegations are true, what President Trump did was knowingly conspire to violate federal campaign law and to hide it from the American people right before the election, and that very severe crime is one that must be punished.
(7) Trump...
