Resist

 

Trump gets away with another one

The Federal Elections Commission (FEC) has closed its investigation into whether former President Trump illegally made hush money payments to women prior to the 2016 election.

The FEC voted 4-1 to close the inquiry after failing to find that Trump or his campaign “knowingly and willfully” violated campaign finance law when his former attorney Michael Cohen paid $130,000 to porn star Stormy Daniels to keep her from disclosing an alleged affair.

[...]

FEC said that it failed by a 2-2 vote to prove any of the parties violated campaign finance law.

  The Hill

Tie means defeat? Should there maybe be five members?

Republican Commissioners James "Trey" Trainor and Sean Cooksey voted to dismiss the matter. Republican Vice Chairman Allen Dickerson recused himself, while independent Commissioner Steven Walther did not vote.

So, it wasn't a tie. It was that only 2 members voted. Why are there no Democrats on the Commission?

In a separate statement, Democratic Commissioner Ellen Weintraub and Commission Chair Shana Broussard said the probe should have been continued after the general counsel said there was reason to believe campaign finance law was broken.

“To conclude that a payment, made 13 days before Election Day to hush up a suddenly newsworthy 10-year-old story, was not campaign-related, without so much as conducting an investigation, defies reality,” the commissioners wrote.

Wait, there are Democratic Commissioners, but they didn't get a vote? This story is raising more questions than it answers.  But I'm not going to go in search of any.

...but hey, do what you want...you will anyway.

Reminder

And that's a non-starter.  Neither Trump or the GOP Senate wants an FEC that's able to enforce law.

...but hey, do what you want...you will anyway.

Deconstructing America

These are dark times at the Federal Election Commission, which has now gone two months without enough commissioners to enforce federal campaign finance laws.

That’s because U.S. senators and President Donald Trump have failed to strike an agreement to fill any of three vacancies on the six-member commission that needs a quorum of at least four warm bodies to conduct most any high-level business.

[...]

"The situation encourages chaos, and it encourages corruption,” said former Rep. Zach Wamp, R-Tenn.

[...]

Since Sept. 1, the FEC has canceled four of its public meetings. That’s on top of three public meetings the agency canceled earlier this year, including two in January because of the partial federal government shutdown.

[...]

Trump’s re-election campaign has repeatedly refused to pay public safety bills sent by the municipal governments of cities that have hosted the president’s campaign rallies. While debate rages over whether the campaign is legally obligated to pay them, federal law appears quite clear that it should at least be reporting these bills as “disputed debt” on its periodic campaign finance disclosures.

On Oct. 28, Rep. Bill Pascrell, D-N.J., sent a letter to the FEC demanding the agency open an investigation into Trump’s campaign for failing to disclose disputed debts. So long as the FEC lacks a quorum of commissioners, agency staff can begin work on such an investigation but commissioners themselves can’t take votes and finish it.

[...]

“It’s a cheap stunt. Horrendous,” the congressman said. “Trump could pay. His campaign has lots of money. These cities should not be taken for granted. Cities are grasping for every dollar for their budgets.”

  Public Integrity

For one thing, the cities should sue.

As of May 1, the FEC was grappling with a backlog of 289 cases on its enforcement docket. Of those, several dozen contained elements that already had surpassed a five-year statute of limitations or would by May 1, 2020.

[...]

Democratic presidential candidate Steve Bullock, the governor of Montana and an outspoken campaign finance reformer, wants access to public presidential matching funds — an increasingly obsolete reserve nevertheless flush with cash (more than $393 million as of June 30) and still available to White House hopefuls who agree to certain fundraising limits.

One problem: the FEC must vote on candidates’ requests to access these matching funds. No commissioner quorum? No vote.

[...]

And numerous cases are fated, in part or in full, to surpass the statute of limitations — and therefore, expire, without justice being served.

[...]

Several of the cases on which the FEC hasn’t acted involve America First Action, a pro-Trump super PAC mired in the Ukraine scandal congressional Democrats are investigating as part of their Trump impeachment inquiry.

[...]

No enforcement of campaign finance disclosure laws could mean illegal, undisclosed and even foreign money seeping into Election 2020, she said.

Perfect timing.

...but hey, do what you want...you will anyway.

Deconstructing America

The vice chairman of the Federal Election Commission (FEC) submitted his resignation letter to President Trump on Monday, leaving the agency without the necessary number of commissioners to vote on proposed actions.

Matthew Petersen, a Republican who has served as a commissioner since 2008, wrote that he will formally step down on Aug. 31.

[...]

His departure leaves the agency with only three of the four members required to vote on proposed actions.

  The Hill

Remember Matthew Petersen? He was the jamoke who failed spectacularly at his initial screening for US District court (nominated by Trump), and withdrew his name for consideration.

Must need to spend more time with his family? Or is there something more to it?

The lack of a quorum will further complicate the ability of the FEC — which has long been ideologically split — to monitor compliance with election law as the 2020 campaign is ramping up.

  WaPo

...but hey, do what you want...you will anyway.

Opinion: SDNY will indict Trump

"Former US attorney Andrew McCarthy on Cohen sentencing memo" - for Fox News:

The president is very likely to be indicted on a charge of violating federal campaign finance laws.

It has been obvious for some time that President Trump is the principal subject of the investigation still being conducted by the U.S. attorney for the Southern District of New York.

[...]

Cohen has stated he did the hands-on work in orchestrating hush-money payments to two women who claim to have had sexual liaisons with Trump many years ago (liaisons Trump denies).

But when Cohen pleaded guilty in August, prosecutors induced him to make an extraordinary statement in open court: the payments to the women were made “in coordination with and at the direction of” the candidate for federal office – Donald Trump.

[...]

Indeed, if the president was not implicated, I suspect they would not have prosecuted Cohen for campaign finance violations at all. Those charges had a negligible impact on the jail time Cohen faces, which is driven by the more serious offenses of tax and financial institution fraud, involving millions of dollars.

[...]

Moreover, campaign finance infractions are often settled by payment of an administrative fine, not turned into felony prosecutions. To be sure, federal prosecutors in New York City have charged them as felonies before – most notably in 2014 against Dinesh D’Souza, whom Trump later pardoned.

In marked contrast, though, when it was discovered that 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.

  Fox News

What McCarthy is leaving unsaid here is a very important point: Obama's campaign was not accused of intentionally misleading the public in order to win the election, but rather of late reporting and some missing reports.  And it wasn't "quietly disposed of."  It was a big deal and thoroughly aired in major media at the time.  (More below.)

The Obama Justice Department did NOT decide not to prosecute.  McCarthy is - intentionally, no doubt - making a misleading statement.  OK, he's lying, and he knows it. The DOJ would have had nothing to prosecute - no case - since Obama's campaign violations were a civil infraction, and there was nothing criminal involved.  They paid the price for that infraction with what was allowable, the largest fine in the history of US election campaigns.

Unlike other types of pleadings, which can be dry and legalistic, sentencing memoranda are meant to persuade the sentencing judge, and they often read like dramatic jury arguments.

This one is no exception, urging that campaign finance laws are vital to election integrity – “painstakingly” designed by Congress “to promote transparency and prevent wealthy individuals” from fueling the “public cynicism” that “the political process belongs to the rich and powerful.”

In the four corners of this case, these words apply to Cohen. But President Trump cannot feel too comfortable upon reading them.

Nor can the Trump legal team take solace when the campaign finance charges to which Cohen pleaded guilty are scrutinized. Thus far, the team has been dismissive, noting that campaign finance law has different standards for a candidate than for other donors.

[...]

[T]he argument goes, even if the hush-money payments vastly exceeded Cohen’s legal ceiling, Trump himself could have made them legally.

There are flaws in this theory.

To begin with, the campaign finance laws do not just prescribe limits on spending; they mandate disclosure. This is a leitmotif of the sentencing memo: Congress demanded transparency. A candidate may spend unlimited amounts on the campaign, but the amounts spent must be reported to the Federal Election Commission.

The sentencing memo for Cohen argues that the hush money payments were not merely unreported. It states that Cohen and the Trump organization – the president’s company – went to great lengths to conceal them by fraudulent bookkeeping.

Again, McCarthy doesn't note that this is what makes the violation infinitely different than that of the Obama campaign.

Cohen [...] pleaded guilty not to making his own excessive contribution but to causing a third party to make an illegal contribution.

Cohen says he was operating at Trump’s direction. Logically, then, if this is true and Cohen caused the third-party illegal contribution, so did the president.

Notably: prosecutors have given Pecker and another American Media executive, Dylan Howard, immunity from prosecution. Do you think prosecutors did that to tighten up the case against Cohen? I don’t.

[...]

This is not to suggest that the president is without cards to play. 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.

And that would be totally unbelievable since he not only didn't report the money as required, but he conspired with Cohen, Pecker, Daniels and others to hide the fact that the deal was made.

If the president is charged, I expect he would vigorously argue that the payment was not a campaign contribution.

Something that Cohen has contradicted and that the SDNY is so certain of that they put it in their court filing. They wouldn't have done that if they didn't have corroborating evidence. Cohen's word would not have been nearly sufficient.

If prosecutors in the Southern District of New York believe they have a case against the president, must they hold off until after he is out of office?

If President Trump were to win re-election, he would not be out of office until 2024, when the five-year statute of limitations on a 2016 offense would have lapsed.

This is discussed in Renato Mariotti's podcast with former Solicitor General Neal Katyal (who, incidentally, wrote the Special Prosecutor's regulations for Mueller's probe). They agree that this is a senseless argument because it would mean that a person could simply skirt any criminal consequences by merely being in office until the statute ran. They also suggest that, since the situation of indicting a sitting president has never been adjudicated and prohibited, Trump could indeed be indicted, putting the statute of limitations in stasis until he leaves office, at which time it would resume running.*

More importantly, do campaign finance violations qualify as “high crimes and misdemeanors,” which is the constitutional standard for impeachment? It is hard to imagine an infraction that the Justice Department often elects not to prosecute is sufficiently egregious to rise to that level, but the debate on this point between partisans would be intense.

No kidding. And that doesn't even take into account the part that McCarthy keeps leaving out: there's more than mere campaign finance violations involved here. There's failure to report AND cover-up/deception of the voting public in order to win an election.

Those are all questions for another day. 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.

And should be charged.

The Washington Post in August this year addressed the issue when Trump was tweet complaining about it and being backed up by Fox News pundits.

A case like Obama’s — which was a civil infraction — is much more common and less serious than a criminal cases such as Cohen’s, in which there was a knowing violation of election law that carries prison time, campaign finance experts said.

[...]

Obama’s 2008 campaign committee was fined by the Federal Election Commission for violating campaign reporting requirements in the weeks leading up to Election Day.

Under federal election law, campaigns must file special notices to the FEC of last-minute contributions of $1,000 or more that are received in the final weeks before Election Day.

In April 2012, the FEC released an audit of the campaign that found that the committee did not disclose the identities of the 1,312 donors responsible for nearly $2 million in contributions in the final weeks of the campaign.

Those donations made up one-quarter of 1 percent of the $778 million raised for his White House bid. The infractions found in the audit were relatively minor considering the volume of contributions, campaign finance experts said at the time.

“Overall, this is a very clean audit report for the Obama campaign. The FEC spent two years picking over $750 million in contributions and expenses and found one violation,” former Republican FEC chairman Michael Toner told Reuters at the time.

Eight months after the audit, Obama’s campaign agreed to pay a $375,000 fine — which was one of the largest penalties in the agency’s history.

[...]

Civil infractions often arise out of inadvertent paperwork errors, which are not uncommon for a presidential campaign that files fundraising reports that are thousands of pages long.

[...]

“There is no good-faith comparison of that sort of conduct with allegations — if proven true — that a candidate him or herself directed his agents to knowingly violate campaign finance laws,” as Cohen said Trump did, [Dan Petalas, former acting general counsel and head of enforcement at the FEC] said.

“It is ethically and morally, entirely of a different character,” Petalas said.

[...]

Cohen said that ahead of the 2016 election, he arranged payments to two women to suppress their stories of alleged affairs with Trump. He told a federal judge that he did so in coordination with the then-candidate and in an effort to influence the election.

He admitted to committing two separate crimes that violated federal election law: He caused a corporation to make an unlawful contribution to the Trump campaign and he personally made an excessive contribution to the Trump campaign.

[...]

Trump asserted Wednesday that because the payments to the women were not made by his campaign committee, they did not break the law.

“They didn’t come out of the campaign, and that’s big,” he said on “Fox & Friends,” adding: “It’s not even a campaign violation.”

However, under federal campaign finance rules, a contribution is “anything of value given, loaned or advanced to influence a federal election.”

A “knowing and willful” violation of those rules — which Cohen admitted to — can lead to criminal charges.

Excessive in-kind contributions do not usually result in criminal prosecution, said Jonathan Biran, a partner at Rifkin Weiner Livingston and former prosecutor with the Justice Department’s public integrity unit.

“What sets this apart is the amount of the things of value — and also, one might argue, the importance of the issue that was the subject of these payments,” he said. “In other words, to prevent the surfacing of these allegations.”

Cohen’s case is similar to that of former presidential candidate John Edwards, who was indicted on charges of using illegal campaign donations to conceal an affair during the 2008 campaign. Edwards was acquitted on one count involving alleged illegal campaign contributions made after he dropped out of the race, and the jury deadlocked on five other charges.

  WaPo

So, don't let the Trump forces fool you with this bullshit.



...but hey, do what you want...you will anyway.

*UPDATE:

I have misstated the case:

In the courts, a little good news

A U.S. District Court judge on Friday issued a ruling invalidating a Federal Election Commission regulation that has allowed donors to so-called dark-money groups to remain anonymous, the latest development in a years-long legal battle that could have major implications for campaign finance.

Judge Beryl A. Howell ruled the FEC's current regulation of such groups, including 501(c) 4 non-profits, fails to uphold the standard Congress intended when it required the disclosure of politically related spending.

  Politico

A D.C.-based federal judge on Friday ordered the Trump administration to restart in full the Deferred Action for Childhood Arrivals program.

[...]

The restart won’t be immediate. U.S. District Judge John Bates said Friday that the order would be delayed until Aug. 23 to allow the government to appeal, but he denied a Justice Department motion to reconsider his earlier decision, saying there were still deficiencies in the administration's rationale for rescinding DACA.
  Politico

In the months since President Donald Trump announced his candidacy for re-election, ten White House officials appear to have violated the Hatch Act by using their official government Twitter accounts for political activity, according to complaints filed today by Citizens for Responsibility and Ethics in Washington (CREW) with the Office of Special Counsel (OSC). These officials include Office of Management and Budget (OMB) Director Mick Mulvaney and White House Press Secretary Sarah Huckabee Sanders.

[...]

The ten Trump Administration officials named in the complaints are: Office of Management and Budget (OMB) Director Mick Mulvaney, White House Press Secretary Sarah Huckabee Sanders, Deputy Director of Communications Jessica Ditto, Executive Assistant to the President Madeleine Westerhout, Principal Deputy Press Secretary Raj Shah, Deputy Press Secretary Hogan Gidley, Deputy Press Secretary Lindsay Walters, Director of Media Affairs Helen Aguirre Ferré, Press Secretary for Vice President Mike Pence Alyssa Farah, and OMB Deputy Communications Director Jacob Wood.

[...]

The Hatch Act prohibits any executive branch employee from “us[ing] his official authority or influence for the purpose of interfering with or affecting the result of an election.” OSC guidance on applying the Hatch Act prohibitions to social media, including Twitter, specifically advises that an employee may not “use a Facebook or Twitter account in his official capacity to engage in political activity” and requires that “any social media account created in a federal employee’s official capacity should be limited to official business and remain politically neutral.”

  CREW