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Prosecuting Trump For Campaign Finance Violations Is Not Likely, Columnist Says


On a Friday, this is MORNING EDITION from NPR News. I'm David Greene in Culver City, Calif.


And I'm Rachel Martin in Washington, D.C. Now that Michael Cohen has been sentenced to three years in prison, his former client, President Trump, is speaking out. Cohen made hush money payments to two women ahead of the 2016 election in order to cover up their alleged affairs with then-candidate Trump. Here's the president speaking on Fox News yesterday.


PRESIDENT DONALD TRUMP: I never directed him to do anything wrong. Whatever he did, he did on his own. He's a lawyer. A lawyer who represents a client is supposed to do the right thing. That's why you pay them a lot of money, et cetera, et cetera.

MARTIN: So how much legal trouble is the present - president actually in? Richard Lowry is the editor of the conservative publication National Review. And he joins us now on the line. Thanks for being with us, Rich.

RICHARD LOWRY: Thanks for having me.

MARTIN: So in this piece you wrote yesterday, you argued that there are a lot of hurdles to bringing legal action against the president, at least on this particular issue - the campaign finance law that has put Michael Cohen behind bars. What's your argument?

LOWRY: Well, I think the strongest argument is that these payments weren't campaign contributions at all because federal law says personal expenditures are expenditures that arise irrespective of a campaign. And he had these affairs with these two women, obviously, years before his campaign. And there's, at least, a plausible case that he would've bought them off anyway to avoid the personal embarrassment. So...

MARTIN: But what's the rationale? - because as we know, he's not someone who embarrasses easily. He is someone who's been very open, talking publicly on Howard Stern and other places about affairs that he's had. You're making the case that if it - that if the campaign hadn't been happening, he would've paid these women off anyway.

LOWRY: I think the circumstances of these affairs happening, you know, soon after the birth of his new son are particularly embarrassing. I mean, he's still lying about them today. And I think at least part of the incentive is hiding them from his wife. And Michael Cohen, who's had every incentive to provide the version most damning to Donald Trump, even Cohen, in his sentencing memo, says he executed these payments and deals to affect the campaign but also to spare client no. 1, as the memo says, and his family personal embarrassment.

MARTIN: So even though Michael Cohen admits that he made these payments to affect the campaign, you don't believe the president made them to affect the campaign.

LOWRY: Well, one - Cohen has - had zero incentive to defend against these particular charges because they're fairly incidental to his other offenses, and he wanted to curry favor with the prosecutors. And the fact that he didn't contest them, obviously, has no effect on Trump's right to contest them if he's actually indicted. And the circumstances are a little different, and some of the facts are less favorable to Trump. But it's a close cousin to the John Edwards case, which failed but had the same basic theory that if you're engaging in a payment that in any way would protect your image from the public, it's a campaign expense.


LOWRY: And there are two FEC chairman who said in that case that they would've counseled John Edwards that his payment to the mistresses was a personal expense. At the very least, this is an area of law that's ambiguous. And when you have any law that can put people behind bars that's ambiguous, that's a problem.

MARTIN: But we should just note on the John Edwards case, there was no equivalent of a Michael Cohen saying in written testimony that it was about the campaign.

LOWRY: That's correct. You know, that's an unfavorable fact for Donald Trump. Plus, the Edwards case is a little different because the payments extended over time and continued after the end of the campaign. But it's my belief that the FEC view on these sort of payments is it's kind of a bright-line distinction. If it's anything that would arise irrespective of a campaign, even if it would have some influence on the campaign, it's a personal expenditure. And a thought experiment that I think is very important is let's posit just the opposite here happened, that Stormy Daniels and Karen McDougal arose. And Trump said, you know what? This is going to hurt me in the election. Let's pay them from campaign funds, you know, $150,000 each. I think a lot of the people criticizing Trump now would be on the complete opposite side, saying, wait a minute. He's using campaign funds for personal expenses.

MARTIN: Even if the charges have merit, though, you say it would be a mistake to prosecute him. Very quickly, can you say why?

LOWRY: Well, just - you know, we honored Gerald Ford. He got a Profile in Courage Award for stopping this kind of prosecution of a former president. I just think it's an important norm to honor. It would be extremely divisive. It'd be kind of a Banana Republic spectacle to have a former president in the dock and, potentially, jailed after leaving office.

MARTIN: Rich Lowry, editor of National Review. Thank you so much.

LOWRY: Thanks for having me. Transcript provided by NPR, Copyright NPR.