On March 18, 2023, former President Trump posted on his social media website that based on leaks from the office of the Manhattan District Attorney, he expected to be arrested the following Tuesday. Every day since, there have been an endless number of reports out of that District Attorney’s office that an indictment should be forthcoming, with commentators discussing the legal and political issues. The coverage truly has been “wall-to-wall.” What should Americans think of this non-stop coverage? We offer two thoughts.
First, when a story is covered incessantly by the press, Americans should first consider whether this is an artificial effort to divert the public’s attention from some other matter — often government corruption. The list of topics that the government does not want the People to focus on about is long. At the moment, it certainly includes whether government policies are causing the collapse of the banking system to ease the way to the adoption of a Central Bank Digital Currency (CBDC) which would give total control over our lives to the federal government. And the government certainly suppressed the revelations by the House Oversight Committee into Communist China-connected sources paying billions to the Biden Family.
Beyond that, there is a second question we should ask — did some prior federal government action contribute to the present crisis? All the stories about the anticipated Trump indictment focus on the leftist Manhattan District Attorney and the Manhattan grand jury. There is almost no press attention paid to how the U.S. Department of Justice (DOJ) teed up the criminal case for the Manhattan DA.
But what exactly is the crime Trump could be indicted for? According to the rumors, the allegations relate to so-called “hush money” payments made in 2016 by the Trump organization relating to Stormy Daniels. It is unclear precisely what state crimes Trump might be indicted for, but they relate to a federal case previously brought against Trump’s former lawyer, Michael Cohen. Daniels sold the exclusive rights to her salacious story of an affair — which Donald Trump denies — to the National Enquirer. In turn, Cohen purchased the story from the National Enquirer for the Trump Organization to prevent it from being published and becoming a publicity distraction.
In 2018, Cohen plead guilty to a federal campaign finance law violation,. At the time, Cohen was facing dozens of federal criminal charges unrelated to Trump, such as tax evasion and bank loan fraud. However, DOJ lawyers allowed Cohen to plead guilty to violating federal election law. The claim was that Cohen had facilitated a “corporate contribution” to be made in order to “prevent [the story] from influencing the election.” The indictment referred to an unidentified person who the media says was Trump, making him guilty by association. But since Trump was not charged, he never had a chance to defend himself. Thus, the DOJ lawyers wrapped salacious charges around Trump’s neck before the 2020 election with no way for him to absolve himself.
There’s one small problem — Cohen pled guilty to something that was not a crime. It can’t be illegal to make the payments personally if the payments could not have been made by the campaign. If the payment to Daniels had been made by the Trump campaign, it would have violated the law as payments made for a “personal use.”
Second, and significantly, federal courts have interpreted the statutory terms “contribution” and “expenditure” and “coordinated expenditures” very narrowly to avoid criminalizing activities which are exercises of First Amendment protected rights. Paying someone not to publish a story is not even close to being the same as making a corporate expenditure to disseminate express advocacy to support or oppose a candidate.
DOJ lawyers attempted a similar strategy only once before when Senator John Edwards had helped support his mistress to keep his affair quiet and prevent it from hurting his political aspirations. He was charged with four campaign finance violations, acquitted on one charge, and the other charges were later dropped. Thus, the DOJ legal theory has never previously been successfully used during FECA’s 50-plus years in existence, and certainly has not been subjected to judicial scrutiny.
But by incentivizing Cohen to “roll over” (i.e., plead guilty) to the campaign finance charge in exchange for dropping other charges, it allowed the judge to look the other way, never being required to write an opinion concluding that Trump’s purchase of the Daniels’ story was prohibited by the Federal Election Campaign Act.
If that same legal theory were applied across the political spectrum, Twitter’s former head of “Trust & Safety,” Yoel Roth, and others at Twitter would be facing federal criminal charges for using corporate resources when it suppressed the circulation of legitimate news stories such as the Hunter Biden laptop story in October 2020. But in the United States, DOJ lawyers have unbridled discretion who to prosecute and who to let off. Regardless of their high-sounding rhetoric, “by their deeds you may know them.” Matthew 7:16.
So it may seem that the charges against Trump are being investigated by the Manhattan DA, but those charges were based on shameless acts by DOJ lawyers before the 2020 election, and are now being recycled to thwart another presidential run by Trump in 2024.