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By Danny Cevallos
On Saturday, President Donald Trump tweeted his latest musings on campaign finance law.
Some of these sentences may be factually correct. One sentence is false, or false by omission, undercutting the reasoning behind the rest of the chief executive’s statement. Where this tweet is incorrect — or misleadingly incomplete — is the sentence: “These are civil cases.”
It is true that some of the figures who oppose Trump were involved in campaign finance violations that resulted in civil cases. The Obama campaign case falls into the category of civil cases.
Contrary to the president’s assertion that these cases are civil, some of these are indeed criminal cases. The crimes to which former Trump attorney and fixer Michael Cohen pleaded guilty fall into the category of criminal cases.
The distinction is significant, and the president likely knew the distinction when he sent this tweet. Whether a campaign finance law violation is criminal or civil depends on a number of factors, not the least of which is the state of mind of the violators.
The Federal Election Campaign Act (FECA) of 1971, regulates the influence of money on politics. The law sets certain limitations and prohibitions: Individual expenditures coordinated with a candidate are limited to $2,700 per election, and corporations are prohibited from making expenditures coordinated with candidates or their committees.
On August 21, 2018, former Trump confidante and personal lawyer Michael Cohen pleaded guilty to campaign finance offenses: causing an unlawful corporate contribution, and making an excessive campaign contribution.
Cohen facilitated $280,000 in payments to be made to silence two women who otherwise planned to speak publicly about their alleged affairs with a presidential candidate, with the intent to influence the 2016 presidential election.
For FECA offenses to be eligible as criminal penalties, the expenditures at issue must “aggregate” to $2,000 or more in a calendar year. Violations involving $25,000 or more are five-year felonies.
The Obama campaign finance law violations involved much higher dollar amounts than the statutory $25,000 criminal threshold. They involved much more than the $280,000 Cohen facilitated. But dollar amounts alone do not determine whether conduct is criminal or civil under the many provisions of the law. The accompanying intent — or lack thereof — can be the driving factor in determining the culpability of the violators.
The 2008 Obama campaign was required to file special notices regarding contributions received less than 20 days before the election. Obama for America (OFA), the principal campaign committee for candidate Barack Obama, did not file required 48-hour notices for 1,312 contributions totaling $ 1,972,266 received prior to the general election. The contributions were in fact reported; OFA just failed to do so within 48-hour time frame.
The Obama campaign’s civil infraction resulted in an administrative penalty, primarily because it was deemed inadvertent. Additionally, it was the campaign that committed the bookkeeping and transmission errors — not the candidate himself.
In contrast, the Cohen violations were knowing and willful, as demonstrated by the efforts to conceal the true nature of the expenditures and contributions. In addition, according to Cohen’s statements in federal court, the candidate not only knew about these payments, he directed or ordered them. So then, the truth of Trump’s tweet today emerges. Here’s a look at it sentence by sentence:
“Many people currently a part of my opposition, including President Obama & the Dems, have had campaign violations some cases for very large sums of money.”
True, at least as it relates to Obama for America in 2012.
“These are civil cases.”
While the Obama for America case was civil, this statement is ultimately false by omission, because it ignores an entire category of criminal offenses for, e.g., knowing and willful violations of campaign finance law.
“They paid a fine & settled.”
This is true, as it relates to Obama for America in 2012.
“I did not commit a campaign violation.”
This remains to be seen. According to Michael Cohen: False.
Parsing Trump’s tweet sentence by sentence, most are actually factually correct. One sentence omits the complete truth. It’s a big omission; one that renders the entire tweet misleading.
Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.