Being a white-collar criminal defense lawyer in the Trump era is a strange thing.
I’ve been thinking about this in the wake of the Michael Cohen plea, because it raises an issue that has been a longstanding problem with our federal criminal justice system. While people are practically salivating about the dirt that Cohen might have on his former employer, how we got to this point concerns me.
For too long, federal prosecutors have been able to prosecute people not because they’ve broken the law, but, rather, simply because they did something bad, which may or may not have broken the law. I’m not saying that Michael Cohen is a good person or a good lawyer, but rather that some of what he pled guilty to is very likely not a crime.
It is supposed to be an article of faith for white-collar defense lawyers — and anyone who is wary of government power — that we should be worried when the government uses an expansive definition of a law to criminalize conduct that may not be a crime.
To be clear, I’m not talking about the bank fraud charges or anything else that Cohen may have done illegally. My concern is what I see as the core allegations against him that involve President Trump — characterizing the payments to Trump’s former mistresses as illegal campaign expenditures simply because they helped him avoid public embarrassment and thus, of course, helped his campaign.
My concerns are twofold — one, whether we want prosecutors to dive into people’s extramarital affairs like this, and two, how worried we should be when they use expansive definitions of ambiguous criminal statutes to do that.
First, how much should a political candidate’s extramarital affairs matter? As someone who is old enough to remember the Clinton impeachment hearings well, I vividly remember the arguments that even though he had an affair in the Oval Office with someone who worked for him, that was still a private matter that should not affect his presidency. Nor, many of his defenders said, should lying under oath about it later make a difference. It was a personal matter that did not go to the core of his presidency.
I’m not sure how much I agree with that, and I think it’s a difficult issue. I believe that a politician’s character is hugely important, and I think extramarital affairs matter in that calculus — they may rarely be dispositive, but they matter. That said, if you want to disqualify every politician who’s ever had an affair, then you have to throw out FDR, LBJ, JFK, and so on down the line. The math here isn’t easy, and we shouldn’t pretend that it is.
Then there is the second issue — whether we should applaud the government’s expansive interpretation of a statute to criminalize this kind of behavior, which by definition will always involve some form of lying or hiding. The crime that Michael Cohen pled guilty to is the same crime that John Edwards was charged with committing when, with Bunny Mellon’s help, he funneled hundreds of thousands of dollars of hush money to Rielle Hunter to be quiet during the 2008 presidential campaign.
That case did not end well for the government — he was acquitted on one count, the jury hung on the other five, and the government ended up dismissing the case. In the end, he walked.
I opposed his prosecution then, for the same reasons I have concerns about the Cohen plea now. Although I don’t think much of John Edwards, moral opprobrium and federal prosecution are two very different things. I didn’t like the idea that the government was going after him for trying to keep private a personal matter that could make him look bad. Because that’s essentially what they are saying the crime is.
In a Washington Post op-ed this week, former Federal Election Commission Bradley Smith made this point very well and asks questions that are worth considering:
If a candidate for public office decided to settle a private lawsuit to get it out of the news before Election Day, would that be a campaign expenditure? If a business owner ran for political office and decided to pay bonuses to his employees, in the hope that he would get good press and boost his stock as a candidate, would that be a campaign expenditure, payable from campaign funds?… Suppose, for example, that Trump had told his lawyers, “Look, these complaints about Trump University have no merit, but they embarrass me as a candidate. Get them settled.” Are the settlements thus “campaign expenses”? The obvious answer is no, even though the payments were intended to benefit Trump as a candidate.
The idea that we should cheer the government’s broad interpretation of a law to mean that any time a politician pays to settle a matter that could hurt him in a campaign is a frightening prospect indeed.
This is even more troubling when the overreach here is used not only against the person who’s pleading guilty, but is also being used to implicate someone else — here, Trump. The law is the law — if something is not properly viewed as a crime, the law shouldn’t be stretched to make it a crime simply to accomplish a particular result.
Again, my purpose here is neither to bury nor praise either man. Rather, it is to breathe a word of caution about cheering the expansive use of an ambiguous statute to punish as a crime — not as a civil penalty, but as something that could put you in jail –behavior that may not be something that we actually want to criminalize.
It’s hard to find perfect people who run for political office. Having a genuine debate about how much one’s private life should implicate one’s public life is important. There are reasonable arguments on both sides about how much being a good spouse has to do with being a good president, or senator, or congressman. But people who — like white-collar lawyers — are often wary of government power should be also wary of cheering its expansive use in an ambiguous context, no matter how much they may like the result in a particular case.
Government power, like government programs and government agencies, is often a one-way ratchet. Once the government has it, it doesn’t lightly give it up.
Don’t Be Too Happy About Michael Cohen’s Plea Deal curated from Above the Law
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