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It's a big mistake to write Trump off

For those who have been hoping for an end to the Donald Trump presidency, Tuesday appeared to be cause for c...

Posted: Aug 23, 2018 7:47 PM
Updated: Aug 23, 2018 7:47 PM

For those who have been hoping for an end to the Donald Trump presidency, Tuesday appeared to be cause for celebration. On that day, a Virginia jury returned eight felony convictions against the president's one-time campaign manager, Paul Manafort, at nearly the same time that Trump's personal attorney and "fixer" Michael Cohen entered guilty pleas to a variety of financial and election law crimes. In short, Trump's critics could revel in the hope that the conviction and imprisonment of both men might foreshadow Trump's exit.

It is premature for anti-Trumpers to dance in the streets.

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The charges against Manafort were largely unrelated to the Trump presidency, and the trial judge virtually banned the use of Trump's name through most of the trial. Furthermore, none of Manafort's crimes were ever linked to the president, and the vast majority of his alleged criminal activities predated his appointment as Trump campaign manager.

In pleading guilty, Cohen admitted to participation in a scheme to pay hush money payments to two women -- Karen McDougal and Stormy Daniels -- with whom Trump is alleged to have had affairs. Missing, though, were the details of Trump's intentional involvement in criminal activity substantial enough to tip the Constitution's "high crimes and misdemeanors" scale.

Recall that, in 2012, attempts to convict former North Carolina Senator John Edwards on similar but far more serious campaign finance violations resulted in a failed prosecution. Edwards, while running for president in 2008, allegedly used unreported funds provided by campaign supporters and "friends" not only to buy silence but to safely house and feed Rielle Hunter-- with whom he was having an affair, and who was pregnant -- while his wife suffered from a terminal form of cancer.

A jury acquitted Edwards on one count and could not reach a unanimous verdict on the other counts in his indictment. Edwards' defense lawyers argued that the predominant purpose of the expenditures was to protect Edwards' personal reputation and his wife from public disclosure of the affair. And even though the payments undoubtedly protected Edwards' political career as well, the jury refused to convict. Trump's lawyers will make the same "mixed purpose" claim should they ever have to defend him in impeachment proceedings.

As a candidate, the law gives Trump, unlike Cohen, the right to make unlimited campaign contributions to his own campaign. And the President's legal team will assert that there was not even a need to report these payments because the purpose of the hush money was to protect his family and the Trump Organization. Yes, there was a collateral political benefit, but, as in the Edwards case, it was inconsequential and not the primary purpose of the payments. Thus, they can argue this is not even a campaign contribution with reporting requirements.

Finally, Trump's lawyers will argue that even if the president had a technical reporting obligation, this is the kind of minor offense which should be viewed as a civil rather than a criminal offense, and is permitted under federal election law. What's more, they will argue, none of the claimed offenses by Trump occurred during his presidency, further damaging any claim that impeachment is warranted under the circumstances.

There may be other criminal offenses chargeable against Trump as more is revealed about Cohen's shady dealings, but Trump's opponents shouldn't put on their dancing shoes just yet.

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