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President Donald Trump suggested Wednesday that the campaign finance violations his former personal attorney, Michael Cohen, pleaded guilty to in federal court are equivalent to campaign finance violations committed by Barack Obama’s first presidential campaign.
“If you look at President Obama, he had a massive campaign violation, but he had a different attorney general, and they viewed it a lot different,” Trump said in an interview with Fox Business.
Earlier Wednesday the president had tweeted: “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!”
But there is no comparison, experts told NBC News. Cohen’s admitted campaign finance law violations are indeed a crime, and they are not similar to the campaign finance violations made by Obama’s 2008 campaign. Election law experts said that more minor violations are treated as regulatory or civil matters, while egregious and willful campaign finance violations are treated as criminal acts — no matter who the attorney general is.
“What Michael Cohen has admitted to doing is absolutely a crime,” said Mitchell Epner, a former federal prosecutor who is now of counsel at Rottenberg Lipman Rich P.C.
Cohen, who was Trump’s longtime lawyer, pleaded guilty to violating two campaign finance rules — willfully causing a corporate finance violation and making an excessive campaign contribution. Each charge carries a maximum sentence of five years in prison and involved hush-money payments to two women who said they had relationships with Trump.
Trump’s name didn’t come up in the federal courtroom in Manhattan, but Cohen said he had paid two women, apparently porn actress Stormy Daniels and Playboy model Karen McDougal, “at the direction” of an unnamed candidate in 2016, and that a $150,000 payment in August 2016 was for the “principal purpose of influencing” the 2016 presidential election. Both Daniels and McDougal have said they had past sexual relationships with Trump.
Asked if he knew that what he did was illegal, Cohen told the court yes.
Trump, in his Wednesday morning tweet, appeared to be referring to a $375,000 fine levied by the Federal Election Commission in early 2013 against Obama’s 2008 presidential campaign over a slew of campaign finance violations, including missing filing deadlines for disclosing large donations during the final weeks of the campaign, reporting the wrong dates on certain contributions, and not returning donations that exceeded the campaign contribution maximum quickly enough.
The violations amounted to “a small, technical paperwork error that people who were trying to get it right might make,” Epner said. “$375,000 for the FEC is a meaningful fine, but compared to the amounts that were involved it’s tiny.”
Often, reoccurring donations can put a donor over the legal limit, Epner explained. Campaigns are required to keep track of donation totals and return the excess within 60 days. The Obama campaign did not do this on time with some donations, and an Federal Elections Commission audit found some unnoticed donations that exceeded the legal limit and were subsequently refunded by the campaign, Epner said, citing the FEC’s conciliation agreement with the campaign.
Epner also said it was “extremely implausible” that an attorney general could influence the regulation or prosecution of campaign finance violations.
The line between civil and criminal campaign finance violations lies in the intent and severity of the violation.
Michael S. Kang, a professor at Northwestern Pritzker School of Law and a campaign finance expert, said the egregious nature of a violation can move it into criminal territory, too.
“As long as you correct them and you didn’t intend them, there’s not really a problem. The criminal standard is how egregious was the campaign violation?” Kang told NBC News. “Here, it seems pretty deliberate.”
Epner, who has tried election law cases, said intent and motivation are key factors.
“It turns on the question of criminal intent,” he said. “When somebody does something with the intent to defraud the government, if it’s on purpose, you’ve got the potential for criminal liability.”