On 21 August 2018, Michael Cohen, Donald Trump's former personal attorney and self-described “fixer”, pled guilty to eight criminal charges, two of which were election law violations concerning the facilitation of hush money payments made in the run-up to the November 2016 general election to women who allegedly had affairs with Trump.
During a hearing in a Manhattan federal courthouse, Cohen stated under oath that he committed these election law crimes “at the direction of” Donald Trump while the latter was a candidate for president, leading some commentators to classify Trump an “unindicted co-conspirator” (although he has not yet been charged in any crime). One defense against such charges, articulated by President Trump on Twitter the following morning, was that Barack Obama also committed campaign finance violations that were just as bad in 2008, but he was let off much easier:
Michael Cohen plead guilty to two counts of campaign finance violations that are not a crime. President Obama had a big campaign finance violation and it was easily settled!
— Donald J. Trump (@realDonaldTrump) August 22, 2018
In this tweet, President Trump attempted to compare the criminal charges brought against Cohen by the U.S. Justice Department with a series of civil violations brought against the Obama campaign by the Federal Election Commission (FEC), a separate, independent body which cannot prosecute criminal cases.
While it is true that President Obama’s 2008 campaign was fined a significant amount of money by the FEC, those fines covered civil violations that were different than the criminal infractions admitted to by Cohen.
In late 2012, President Barack Obama’s 2008 campaign was fined $375,000 by the FEC for reporting violations. The major issue concerned the timely documentation of donations made in the 20 days prior to the election, a window of time during which the FEC requires official notice of contributions exceeding $1,000 to be submitted no more than 48 hours after receipt of those donations:
The major sticking point for the FEC appeared to be a series of missing 48-hour notices for nearly 1,300 contributions totaling more than $1.8 million -- an issue that lawyers familiar with the commission’s work say the FEC takes seriously. The notices must be filed on contributions of $1,000 or more that are received within the 20-day window of Election Day ...
The document outlined other violations, such as erroneous contribution dates on some campaign reports. The Obama campaign was also late returning some contributions that exceeded the legal limit.
While the fines leveled against the Obama campaign were among the largest in the FEC’s history, so too was the amount of money raised by that campaign. Speaking to Politico in 2013, Republican election lawyer Jason Torchinsky said that “$375,000 is a huge fine” but added that the Obama campaign was also the first billion-dollar presidential campaign in history, making the fine “proportionally ... not out of line.” In the same story, former FEC commissioner Michael Toner said “that the infractions were relatively minor, given the scope of the campaign.”
Speaking to us by phone, Ann Ravel, a former FEC commissioner who served from 2013 to 2017, told us that “the FEC does not have criminal capabilities. All of the criminal cases have to be prosecuted by the Department of Justice.” For a criminal violation of election law to be enforced by the Department of Justice (which was the case in the Cohen matter), she told us, the violation must be considered both intentional and serious:
Not only does the matter have to be something that is purposeful, but it [also has to be] a major violation. People often have reporting violations [and] that's what the Obama ones were determined to be.
In [Cohen’s] case, what [the Department of Justice] determined is that there was a criminal intent to hide a campaign contribution ... and so, it falls within a criminal violation, as opposed to just a civil one to be enforced by the FEC.
From a legal standpoint, the Department of Justice has already proved that Cohen intentionally acted to facilitate and hide an illegal contribution for the purpose of affecting the election, because that is what he formally admitted to. In a document produced by the Southern District of New York whose accuracy was affirmed by Cohen under oath, Cohen agreed that he:
Knowingly and willfully caused a corporation to make a contribution and expenditure ... to ensure that Woman-1 did not publicize damaging allegations before the 2016 presidential election and thereby influence that election.
Knowingly and willfully made and caused to be made a contribution ... in excess of the limits of the Election Act ... to Woman-2 to ensure that she did not publicize damaging allegations before the 2016 presidential election and thereby influence that election.
The infractions committed by the 2008 Obama campaign were not alleged to be intentional, and the FEC did not consider the campaign's documentation lapses as rising to the level of a “serious” offense prosecutable by the Department of Justice.
“There are always reporting violations in campaigns. Many of them minor, many of them substantive,” Ravel told us. “But in this case ... what was admitted to by Cohen was that there was a clear intent to use campaign money for the purpose of keeping the individuals quiet right before the election for campaign purposes.”
Trump’s assertion that Cohen broke no law is in conflict with his own Justice Department, who secured multiple guilty pleas related to the commission of violations of federal election laws. Specifically, Cohen admitted to intentionally violating portions of the following federal election laws on behalf of Donald Trump:
- 52 U.S. Code § 30116 - Limitations on contributions and expenditures
- 52 U.S. Code § 30118 - Contributions or expenditures by national banks, corporations, or labor organizations
Obama’s civil FEC infractions, while they resulted in a large fine, are legally distinct from what Cohen pled guilty to, which is the intentional commission of felonies intended to affect the outcome of a federal election.