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Friday, March 01, 2019

Michael Cohen and Prosecutorial Overreach

As the House Oversight Committee hearing this week reminded us, Donald Trump has given special counsel Robert Mueller and the Department of Justice plenty of reason to investigate him and his aides for misconduct. The Trump campaign’s ties with Russia may have compromised the integrity of our elections. Trump’s business dealings in Russia may have led him to sacrifice U.S. foreign policy interests in favor of his personal financial interests. And Trump’s efforts to hide all of this may constitute obstruction of justice.

But while we should welcome efforts to hold the President accountable for his misdeeds, we should reject the prosecutorial overreach that has occurred in the plea agreement with Michael Cohen. It was wrong for federal prosecutors to use campaign finance law to bring charges over the “hush money” payments to Stormy Daniels and Karen McDougal. And it would be wrong to go after the President because of the payments.

The prosecutors’ campaign finance allegations are dubious. Indeed, similar charges were unsuccessful when filed against John Edwards after his failed bid for the presidency in 2008.

Under the prosecutors’ theory of the case, Trump should have made the payments directly to Daniels and McDougal and disclosed the payments on his campaign finance reports. That would have been legal.

But if Trump had taken that path, it would have become clear very quickly that he paid the two women not to reveal his affairs with them. Trump needed to funnel his payments through Cohen to keep his intimate relationships private. So while the charges against Cohen alleged violations of campaign contribution limits, the charges ultimately boiled down to the idea that Trump could not maintain his privacy about his sex life once he announced his candidacy.

Prosecutors should not interpret election law in a way that requires candidates to open for public scrutiny their consensual, intimate relationships. Candidates lose much of their privacy when they run for office. Their financial status and their health status are fair game. But hiding Trump’s affairs did not deny voters any information that was a legitimate matter of public concern during the 2016 presidential campaign. Neither Daniels nor McDougal has alleged sexual harassment, sexual assault, or other abuse by Trump. This was not a #MeToo moment. Voters do not have a meaningful interest in knowing about a candidate’s consensual, intimate relationships.

Some observers have argued that we were entitled to know whether Trump cheated on his spouses because it spoke to his fitness to serve. But there is no good evidence connecting marital infidelity with quality of service. Jimmy Carter was faithful, JFK was not.

In any event, we do not have to worry that the public was misinformed about Trump regarding his sex life. Anyone who cared about his marital infidelity already knew he cheated on his spouses. They also already knew he engaged in much worse sexual conduct—the sexual assaults that he described in the Access Hollywood tapes. Voters who cared about marital fidelity knew what they were getting in Trump, and they either voted against him for that and other reasons, or they voted for him because they felt the advantages of a Trump presidency outweighed his personal failings.

There are serious downsides to prosecuting candidates who try to hide information about consensual, intimate relationships. When the government starts policing the bedroom, it does more harm than good. Suppose a candidate for office is running in a community unfriendly to the LGTBQ community, and the candidate is secretly gay. A former lover threatens to disclose their relationship, and the candidate pays hush money. Is it a good idea to bring criminal charges against the candidate for violating campaign finance laws?

These kinds of charges may discourage many desirable candidates from running. It is already true that many worthy candidates do not run for office because of the intrusive scrutiny on their personal lives. Potential candidates with an adulterous affair in the past may decide against a campaign to spare their spouses and children of the publicity that will ensue.

We should know lots more information about President Trump’s relationships with Russia and how their ties may have influenced our elections and our foreign policies. But we should not turn consensual intimate relationships into criminal violations.

Posted by David Orentlicher on March 1, 2019 at 11:12 AM in Criminal Law, Law and Politics | Permalink



My basis for my statement about the purpose of the law is its text. The statute requires disclosure of all campaign-related expenses. There is no provision that narrows that obligation when the campaign-related expenditure is related to blackmail or when it is not related to some other "purpose" that is not specified in the text of the statute. Professor Orentlicher's effort to read the statute more narrowly than the text permits and thereby to import some sort of "purpose" requirement consistent with his view of optimal policy on privacy, but unsupported by the language of the statute, strikes me as policymaking, not statutory interpretation. He certainly does not claim that the statute states that its purpose does not include disclosing anything that might compromise a candidate's "privacy," whatever that might mean. To be fair, Professor Orentlicher's initial post was expressly based on his policy preference, and not any language found in the statute itself. In my view, however, there is not basis for importing into the law a "purpose" requirement not identified in the language of the statute itself.

Larry Rosenthal

Posted by: Larry Rosenthal | Mar 6, 2019 8:19:41 PM

I thought the disagreement in these comments was whether the campaign finance laws should stretched beyond their original purposes to also get candidates to disclose blackmail attempts.

But now LR is arguing that that actually is one of the purposes of the law? What is the source for that?

Posted by: Biff | Mar 6, 2019 4:17:39 PM

Professor Orenlitcher writes: "[C]ampaign finance law is not designed to address concerns about blackmail, and it shouldn’t be distorted to do so." That seems self-evidently wrong. Campaign finance law is designed to require disclosure of all campaign-related expenses. If the payments to the two women were campaign-related, the statute applies. It seems to me that Professor Orenlitcher is the one distorting the law, by reading it more narrowly than it is written. As for the concern about blackmail, it is not the potential for criminal liability that "allows people to exploit public prejudices to compromise candidates," but the potential for blackmail itself. The fact that embarassing secrets can compromise candidates and officeholders is no reason for the law to remain indifferent to the potential for blackmail by protecting candidates the "privacy" of candidates who succumb to blackmail. It is also true that this "blackmail theory would apply to any potentially embarrassing information" and "puts people at risk for criminal prosecution because they might be victimized by blackmail," but in this context, it seems to me that it is far better to protect the public from compromised candidates vulnerable to extortion that to try to protect the privacy of candidates compromised in this fashion.

Larry Rosenthal

Posted by: Larry Rosenthal | Mar 6, 2019 10:18:26 AM

As Levene and Watkins observe, the prosecution theory leads to illogical results, and that should caution us against recognizing it. Campaign finance laws are not clear on whether the payments to Daniels and McDougal are illegal, and we should resolve the uncertainty in a way that is consistent with the purposes of the laws.

If he were not a candidate, Trump would not be prosecuted for his affairs with Daniels and McDougal, nor would he be prosecuted for secretly paying hush money to them or having Cohen make the payments on his behalf. His interest in the privacy of his intimate relationships would be respected. So why should his becoming a candidate make the payments criminal?

One theory would be that once he’s a candidate, the affairs and payments are no longer a private matter but a matter of interest to the public. But as I’ve indicated, a candidate’s consensual sexual relationships are not a legitimate matter of interest to voters. The existence of such relationships does not provide meaningful information about a candidate’s worthiness to serve. Moreover, many voters will likely draw the wrong conclusions from the information. That people will misinterpret information is not a reason to censor such information, but it is a reason not to require its disclosure.

As for the potential for blackmail, there are serious problems with that theory. First, campaign finance law is not designed to address concerns about blackmail, and it shouldn’t be distorted to do so. Second, a blackmail theory allows people to exploit public prejudices to compromise candidates. This can happen with candidates who have had extramarital affairs; it also can happen with gay candidates who want to keep past same-sex relationships secret. The blackmail theory would apply to any potentially embarrassing information that a candidate would prefer not to make public but that might be made public without the payment of hush money. Third, a blackmail theory puts people at risk for criminal prosecution because they might be victimized by blackmail. That gets things backwards.

As to J’s point that Daniels or McDougal could have turned down the hush money and gone public, that is correct. I am not arguing that Trump could force them to be silent. Rather, I am arguing that it is not a criminal matter if he does buy their silence.

Posted by: David Orentlicher | Mar 5, 2019 11:28:21 PM

Mr. Levene and Mr. Watkins:

Among the purposes of requiring disclosure of these expenditures, whether from a candidate or donor's personal funds or a campaign account (contrary to Mr. Levene's apparent assumption, nothing in the proseuction's view of the law requires that funds come from a campaign account), is to incentivize a candidate to disclose -- if and only if the prosecution can prove beyond reasonable doubt that the funds were spent for the purpose of winning an election -- information that, if left undisclosed, would render the candidate vulnerable to blackmail or extortion (both from the recipient of the funds and others knowledgeable about the payments and their purpose). One can disagree with that rationale, but IMHO, one should at least address it.

Larry Rosenthal

Posted by: Larry Rosenthal | Mar 5, 2019 9:22:30 AM

I concur with Mr. Watkins above. The prosecution's theory of the case is absurd. Under their theory, since the payments to Trump's mistresses were campaign expenditures, they were required to be made with campaign funds, which could be entirely comprised of contributions from supporters. Likewise, under their theory, a politician who gets a facelift before an election, mostly to look better for the public but also to feel better about herself, would be required to use campaign funds, and again, that could be solely funds from contributors. This theory opens a giant loophole for candidates to use campaign funds for personal purposes and is directly contrary to the structure and purpose of the campaign finance laws. Finally, even if you accept the prosecution's ridiculous theory that these hush money payments were campaign expenditures and not personal expenses, there is no public purpose of any kind in requiring candidates to disclose that they've spent their own monies on campaign expenditures. Are they bribing themselves? It's silly.

Posted by: Douglas Levene | Mar 5, 2019 6:16:53 AM

Either these payments are contributions to the campaign or they are not. It cannot be if it is for "Personal use," which is defined as any expenditure "used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate's election campaign." But if it is not a personal use that would exist irrespective of the candidate's election campaign, then campaign funds can be spent on it. So, the argument being made would mean that rather than making the blackmail payments out of his personal funds, Trump could have used campaign funds from donations he had received? That seems a rather absurd result to reach, and if Trump had actually done that I suspect many of the same people complaining today would be complaining about that.

Posted by: Devin Watkins | Mar 4, 2019 4:18:31 PM

It’s also worth looking at what happened in the Edwards trial. My understanding is that Edward’s defense was that his high level backers made the payoff without his knowledge. As such it seems reasonable to suppose that the jury voted to acquit because they believed this theory and at the very least we shouldn’t assume it was the result of some kind of jury nullification without evidence.

As we have no lack of evidence that Trump was fully aware of the payment the Edwards precedent would seem to support prosecution in this case not argue against it. While Trump may argue he didn’t intend to evade campaign finance laws the structure of the payments and the testimony of Cohen provide significant evidence he did.

Whether or not it is a good policy to have laws which have the effect of barring secret payoffs to keep sexual partners quiet the fact we charge other people (e.g. Edwards) for knowingly trying to evade the campaign finance laws suggests that its not prosecutorial overreach in this situation *EVEN IF* those laws are bad policy.

Posted by: Peter Gerdes | Mar 4, 2019 1:41:31 AM

You say that “the charges ultimately boiled down to the idea that Trump could not maintain his privacy about his sex life once he announced his candidacy.” That’s just not true, however. He can keep whatever secrets he wants to. It’s just that if he spends money to try and influence the narrative around his candidacy, that money is (and should be) considered money spent on behalf of the campaign and treated accordingly under campaign finance law.

Surely you believe that Stormy Daniels could have refused the payment and gone public about Trump’s affair with her during the campaign if she wanted to. Whatever right Trump might have to protect his own privacy doesn’t extend to forcing other people to do his bidding. And if he wants to spend money to try and influence how people perceive his campaign, that’s a quintessential campaign expense. If instead of spending hush money on Trump’s behalf, Cohen had bought Trump a car that he used to drive to a newspaper interview, we wouldn’t say that donation wasn’t a campaign expense simply because Trump has the “right” to talk to the press. Using money to facilitate that right is the very thing campaign finance law is intended to regulate and there’s no reason to treat sex as somehow an exception to the law.

Posted by: J | Mar 3, 2019 11:43:42 AM


Counts 7 and 8 of the information, to which Mr. Cohen pled guilty, allege unlawful campaign contributions -- in the form of payments to two woman made to obtain their silence about extramarital affairs that might prove embarassing to Individual 1. Individual 1, in turn, is alleged to have been an candidate for federal office. The information further alleges that Mr. Cohen caused those payments to be made at the direction of the candidate. That is precisely the theory of liability I have been discussing, and the facts alleged indicate that the candidate was vulnerable to blackmail.

You are correct that current law does not make it a crime to run for office with some sort of embarassing secret but without more -- it would be difficult to draft such a law without encountering fatal problems of vagueness -- but current law, at least on the view taken in counts 7 and 8, does require that if payments are made for electoral purposes in an effort to conceal such a secret, they be properly disclosed and subject to contribution limitations. That certainly makes it more legally risky to run for office while being vulnerable to extortion, as well as to buy the silence of potential extortionists (who have a funny way of not staying bought). For the reasons I have expressed in prior comments, I regard this aspect of current law as a good thing. It raises the legal risks facing candidates who are vulnerable to extortion but unwilling to disclose whatever compromising information that has rendered them vulnerable to extortion, as well as the legal risks facing those who would assist such a candidate in buying the silence of potential extortionists.

Larry Rosenthal

Posted by: Larry Rosenthal | Mar 3, 2019 11:27:37 AM

Your arguments support making it a crime to run for president with a secret infidelity in one's past, irrespective of whether one paid hush money from personal funds, campaign funds, or didn't pay at all.
Cohen admitted to a different crime - using personal funds to pay hush money.

Posted by: Biff | Mar 2, 2019 11:32:02 PM

Criminal charges are always brought "after the fact," but can nevertheless be brought for purposes of enhancing deterrence, especially for the types of "white collar" crimes for which actors are likely to be particularly sensitive to costs and benefits. Viewed ex ante, the point of criminalizing activity is to raise the costs of engaging in specified activity so that actors are less likely to undertake it. This particular theory of liability raises the costs facing candidates who wish to run for important offices yet who are vulnerable to blackmail, whether because of extramarital affairs or for any other reason. On this view, candidates must either resist blackmail, or face criminal liability for making undisclosed extortion payments in order to enhance their electoral prospects. For my part, I think the cost in terms limting the freedom of potential candidates to engaged in private, consensual extramarital sex that might render them vulnerable to blackmail are comparitively small when contrasted to the interest of the public in minimizing the possibility that candidates for elective office have engaged in compromising behavior that might render them vulnerable to blackmail.

An individual would surely be denied high-level security clearance on the basis of undisclosed and potentially embarassing sexual misconduct. I do not grasp why we must offer greater protection to sexual infidelity by presidential candidates than we offer to those subsequently chosen to occupy sensitive positions in the administration of a potential candidate.

As to whether the deterrence signal here is "weak" or "strong," or whether screening by the press and public is likely to disclose these kinds of relationships without need of criminal liability, there is not much good data here to support either conclusion. Anecdotally, however, the apparent prevalence of "catch-and-kill" arrangements suggests that the press is not always effective at getting this kind of information out to the public. In terms of deterrence, if a candidate were to consult Michael Cohen, I suppose one is likely to get a "weak" deterrence signal, but if one consulted others, the answer might be much different. In any event, in the absence of good empirical data, I prefer the precautionary principle. If we have to err, I would err on the side of protecting the public, rather than the sexual peccadillos of candidates for high office.

Larry Rosenthal

Posted by: Larry Rosenthal | Mar 2, 2019 5:30:53 PM

Thanks for the history about JFK and Hoover, Larry. Maybe, there's a role for prophylaxis. But criminal charges after the fact are not targeted at prevention, other than through deterrence, and I suspect the deterrence signal is weak, as with Trump. I also suspect the Hoover-JFK example tells us more about Hoover than about the risks of extramarital affairs.

It seems as if you're suggesting that it would be desirable to screen presidential candidates for extramarital affairs in advance of voting. For example, the practice of disclosing medical information and tax returns serves that kind of prophylactic screening role. I'm not sure what the equivalent would be for extramarital affairs. Do you have some thoughts about that? I also think it's likely as with Trump that voters will be informed by the media and other sources about candidates' marital infidelities without the need to criminalize them.

Posted by: David Orentlicher | Mar 2, 2019 12:54:41 PM

Perhaps the most troubling example of potential blackmail involves President Kennedy's extramarital affairs. A number of historians have documented how J. Edgar Hoover's knowledge of those affairs enabled him to obtain leverage over President Kennedy and his brother, the Attorney General. Among other things, this leverage seems to have played a significant role in the ability of Director Hoover to obtain the Attorney General's consent to the wiretapping of Dr. King. That said, looking backwards into history is, in my view, an unsatisfactory way to think about this question. For one thing, there may be many instances in which Presidents were compromised that never came to light. For another, it is the future risks of a compromised President that ought to be of greatest concern. There is, however, no reliable way to gauge the magnitude of those risks. That strikes me as a sound basis for prophylaxis.

Larry Rosenthal

Posted by: Larry Rosenthal | Mar 1, 2019 9:50:43 PM

The risk of blackmail is certainly important, but I wonder how serious it is. Over a long period of time, we've had more than a few presidents who have committed adultery. Have there been examples in which a president's policies were compromised because of blackmail or the threat of blackmail, by a paramour?

Posted by: David Orentlicher | Mar 1, 2019 7:38:01 PM

The claim that the government is doing little more than "policing the bedroom" in cases such as those involving John Edwards and Michael Cohen seems to me to oversimplify matters. If a presidential candidate if vulnerable to extortion or blackmail because of an extramarital affair, then it seems to me that the matter is of legitimate public concern. It is naive at best to think that the danger of extortion has passed once a payment has been made.

Larry Rosenthal

Posted by: Larry Rosenthal | Mar 1, 2019 4:54:20 PM

The payments were personal in that they likely would have been made regardless of whether Trump was running for President -- or so a reasonable jury would consider.
One may wonder why the prosecutors did not go after Daniels for blackmail, an actual crime, rather than Trump's efforts to hide adultery, which I imagine are the norm.

Posted by: jt | Mar 1, 2019 4:49:34 PM

A jury acquittal does not tell us anything about whether such charges are overreach or inappropriate. Perhaps a line of acquittals, but a single case is not evidence of anything much. Maybe Marcia Clark type prosecutor was lead and so the whole thing a mess. Maybe, etc.

Posted by: J. Bogart | Mar 1, 2019 1:20:37 PM

Good question, and not at all. I think the charges against Cohen were dubious, and the acquittal of Edwards suggests that the jury thought that similar charges were dubious. The acquittal isn't decisive, but it provides useful support for the view that these kinds of charges are inappropriate.

Posted by: David Orentlicher | Mar 1, 2019 12:04:49 PM

Edwards was acquitted by a jury. Are you suggesting that when there is an acquittal the law in question should be henceforth ignored?

Posted by: J. Bogart | Mar 1, 2019 11:18:53 AM

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