Harvard Law School professor emeritus Alan Dershowitz stated that President Donald Trump could have directed Michael Cohen to spend a billion dollars in hush money payments during the 2016 presidential campaign, and he would not have committed a crime.
Cohen told ABC News “Good Morning America” host George Stephanopoulos on Friday that Trump knew payments made to adult film star Stormy Daniels and former Playboy model Karen McDougal in the months before the 2016 general election were “wrong.”
— Good Morning America (@GMA) December 14, 2018
Further, Cohen said they were made “to help (Trump) and the campaign.”
Dershowitz responded on Fox News Channel’s “America’s Newsroom” later in the morning, saying, “What Cohen doesn’t seem to understand is the difference between something that may be wrong and something that may be illegal.”
“Reasonable people can disagree about whether it’s wrong to pay hush money to somebody to stop them from disclosing alleged improprieties sexually. Reasonable people can say that’s wrong or that’s right. It’s not illegal,” Dershowitz explained. “A presidential candidate under the law could spend a billion dollars of his own money to do anything in the campaign.”
WATCH: @BillHemmer spoke with @AlanDersh on Cohen’s first interview after being sentenced to 3 years in prison: “What I worry about is when you criminalize political sins, and you eliminate the line between law and crime, you’re really endangering the rule of law.” #nine2noon pic.twitter.com/Sqy3k6o1M6
— America’s Newsroom (@AmericaNewsroom) December 14, 2018
The legal scholar offered the hypothetical of Trump paying cash himself to Daniels or McDougal and telling them, “I’m paying you not to disclose what happened, and I’m doing it in order to help myself be elected president.”
“That would not be a crime,” Dershowitz contended.
He took it a step further arguing that if what Cohen is saying is true — that Trump directed him to make the payments — it takes them out of the purview of what the attorney pleaded guilty to — making excess campaign contributions — because they were made in effect by the presidential candidate.
Cohen has stated he submitted the expenses to the Trump Organization.
“I don’t understand the case for making (the payments) criminal,” Dershowitz concluded. “What I worry about is when you criminalize political sins, and you eliminate the line between wrong and crime, you’re really endangering the rule of law.”
Dershowitz’s view is shared by Heritage Foundation campaign law expert Hans von Spakovsky, who served two years as a commissioner on the Federal Election Commission, the authority charged with enforcing federal campaign finance laws.
“President Donald Trump’s former attorney, Michael Cohen, may have been convinced by the Office of the U.S. Attorney for the Southern District of New York to plead guilty to a supposed violation of campaign finance law, but that doesn’t mean that what happened is actually a federal crime,” von Spakovsky wrote in a piece for The Daily Signal, published earlier this week.
“In fact, neither the Federal Election Commission — which is the independent agency tasked with enforcing the Federal Election Campaign Act — nor its former commissioners would likely agree with the overaggressive view that the Southern District is taking,” he added. “Indeed, the Southern District’s aggressive stance on this issue might have violated the Justice Department’s own policy.”
Von Spakovsky went on to argue there is a problem with New York federal prosecutors’ claim Cohen is guilty of a crime merely because the payments were made with “the intent to influence the 2016 presidential election.”
The expert cited a statute that specifically provides that if the expense served a purpose outside the campaign, it was not a campaign expenditure.
“These payments were relatively small given Trump’s net worth — the kind of nuisance settlement that celebrities often make to protect their reputations, especially when faced with claims that will cost far more to defend than making a quick payoff without all of the bad publicity that usually accompanies such cases,” von Spakovsky wrote.
Trump’s personal attorney Rudy Giuliani stated that the payment to Daniels was made “to resolve a personal and false allegation in order to protect the president’s family” and “it would have been done in any event, whether he was a candidate or not,” according to The Washington Post.
Von Spakovsky further pointed to the case of former Democratic presidential candidate John Edwards, whom the DOJ unsuccessfully sought to prosecute for similar payments made to the candidate’s mistress.
He noted that two former FEC chairmen were prepared to testify that such payments were not campaign-related.
Trump cited von Spakovsky during a Thursday interview on Fox News and argued that prosecutors wanted Cohen to plead guilty to the supposed campaign finance violations merely for the purpose of embarrassing him as president.
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