President Trump’s former personal lawyer, Michael Cohen, pleaded guilty Tuesday to violating campaign finance law. He admitted to paying two women who claimed to have had affairs with Mr. Trump in order to silence them before the 2016 election. Yet the big news was that Mr. Cohen also claimed, under oath, that then-candidate Trump directed him to make the payments.
His assertion, if proved true at a possible impeachment hearing in Congress, could be a political game changer – not only for the president but perhaps for the many rules and laws governing the role of money in campaigns.
Prosecutors had good reason to opt for a plea from Cohen rather than risk a trial. Juries are often reluctant to convict people under current campaign-spending regulations, which keep changing because of court rulings, new federal rules, or new laws. Jurors must often perceive the intent of the accused or find a connection between campaign money and a political outcome.
That could be why most campaign finance violations trigger only a small fine. Even serious charges of violations are often found wanting. In a 2012 trial, a jury failed to convict former Democratic presidential candidate John Edwards on charges he used about $1 million in campaign money to conceal an extramarital affair during his 2008 run for the White House. In 2017, a jury deadlocked over charges against Sen. Bob Menendez of New Jersey that he did official favors in return for campaign donations.
The Supreme Court, too, keeps chipping away at campaign finance laws passed since the 1970s, such as the Bipartisan Campaign Reform Act of 2002. Or their rulings shift depending on the leanings of each new justice. In a 2006 decision, the high court set a very high bar for prosecutors who try to link campaign money to “corruption.” Prosecutors must show the “pro” between the “quid” and the “quo.”
This unease about imposing strict campaign rules is tied to the Constitution’s protection of free speech, even the free speech of organizations such as unions or corporations. Citizens are not only entitled to hear competing views, they must also be seen as capable of self-governance. They are not gullible dupes of TV ads, campaign tweets, or leaflets handed out on street corners. Citizens are responsible for their thoughts and actions. Under the Constitution, as Justice Ruth Bader Ginsburg has stated, the people are “the font of governmental power.”
In the 2016 presidential race, Hillary Clinton far outspent Trump but lost. In many races, voters speak louder than big money, an affirmation that elections rely on the integrity and discernment of citizens.
Cohen’s assertion against the president may yet be tested in Congress or perhaps a court. Clearly breaking a law on campaign finance with provable intent deserves punishment. Yet beyond the accusations in this case is the deeper question of how those laws see American voters – as intelligent and reliable or as easily manipulated.