President Donald Trump on Wednesday responded to his former lawyer Michael Cohen’s assertion in court that the president directed him to commit felony violations of campaign finance law by whining on Twitter and in an interview with Fox News that former President Barack Obama “had a massive campaign violation,” but no one was charged with any crime. Unsurprisingly, for a president who has made over 2,321 false statements since taking office, this is a false comparison.
Trump is talking about the $375,000 fine Obama’s 2008 campaign received from the Federal Election Commission in 2013 for failing to file numerous reports in the waning days of the 2008 campaign and for receiving improper excessive contributions and failing to properly refund them in the legally necessary timeframe. It remains the largest fine ever handed out by the FEC and its size shows that this was a significant case with significant repercussions.
There are however two crucial distinctions between Cohen’s violations, which implicate Trump, and those of the Obama campaign. But while the Obama campaign’s violations were serious, they fall into a category that campaign finance lawyers call routine violations, said Larry Noble, who served as the FEC’s general counsel from 1987 to 2000. These violations would be a failure to file reports in a timely fashion or inadvertent receipt of excessive contributions. But the violations Cohen admitted to in court, of which he likely has evidence, are not routine; they are admitted felonies.
The Obama campaign was not found to have “knowingly and willfully” violated campaign finance law while Cohen admitted to the court that he did “knowingly and willfully” break the law and that Trump directed him to do so. Whether or not something is done knowingly and willfully is what separates an improper action from being a civil infraction or a criminal law violation.
“It really is apples and oranges ― two totally different things,” Noble said.
The FEC did not determine that the Obama campaign intended to break the law in its failure to file 48-hour notices in the final weeks of the 2008 election or in its failure to refund excessive contributions in the legally appropriate amount of time. Nor was there any indication that Obama himself ordered the campaign to not file the unfiled 48-hour reports or fail to promptly refund excessive contributions. The 2008 campaign was the most expensive presidential campaign in history at the time and was the first to raise hundreds of millions of dollars online, many in the form of small donations. The campaign clearly had a lot of problems managing these contributions and that led to a host of unintended violations.
These unintended violations are committed by practically every presidential campaign, particularly those that receive a huge number of online contributions from a large number of donors.
The FEC sent letters to the Trump campaign asking it to explain a litany of potential violations including excessive contributions, anonymous contributions and failure to file 48-hour reports ― the exact the same violations as the 2008 Obama campaign. Sen. Bernie Sanders (I-Vt.) was cited for similar potential violations in his 2016 presidential campaign. So was Sen. Ted Cruz (R-Texas). Even Herman Cain got rung up with a fine for these violations.
That is entirely different from what Cohen has admitted to in court documents. Cohen’s plea agreement with the U.S. Attorney for the Southern District of New York states that Cohen “knowingly and willfully made and caused to be made a contribution to,” Trump, named as “Individual-1,” that was in excess of contribution limits in order to buy the silence of women alleging affairs with the then-presidential candidate. Cohen further admitted in court that Trump personally directed him to pay the hush money to the women and promised to reimburse Cohen for those payments through his real estate corporation.
In doing so, Cohen implicated the president in the commission of multiple felonies. This has not happened to a sitting president since Richard Nixon was named as an unindicted co-conspirator as part of the Watergate burglary ― a fact that did not come to light until June 1974, two months before he resigned the presidency. Unfortunately for Trump, there is no comparison to another president available.