Donald Trump, the man who once bragged on national television in 2015 about his remarkable knowledge surrounding campaign donations, declaring, “I know more about contributions than anybody,” now has a brand new defense to his alleged federal election crimes: He suddenly claims to know nothing about how campaign donations work. The problem with this defense, though, is this thing called “Google,” which details Trump’s long history of being investigated and even fined for violating campaign laws.
We heard this new defense on Thursday in response to Trump’s long-time lawyer Michael Cohen telling prosecutors that Trump directed him to violate federal campaign laws. Trump stated via Twitter, “I never directed Michael Cohen to break the law. He was a lawyer and he is supposed to know the law. It is called ‘advice of counsel.’” (It’s like the end of an episode of Law & Order when both suspects claim the other is the real ring leader.)
This may come as a surprise to some, but “advice of counsel” is an actual legal defense that people have utilized effectively to shield themselves from criminal liability, although it’s a longshot. But if Trump were to have any chance with this defense in a courtroom, he must show that in good faith he relied on his lawyer’s advice and had no idea that the conduct may have been criminal.
The reality is that Trump can’t in good faith claim he was oblivious to the rigors of campaign finance laws, because he was personally investigated from 2011 through 2013 for possible campaign violations by the Federal Election Commission (FEC). Add to that, in 2000, Trump paid a then-record fine for violating New York lobbying laws for failing to report that he was the person secretly financing a campaign. These experiences would clearly seem to put Trump on notice that any effort to undermine transparency when it comes to campaigns is not only wrong but could result in civil or criminal penalties.
Let’s start in 2011, when Trump was “testing the waters” to possibly seek the 2012 GOP nomination for president. Cohen, yes that Michael Cohen, was then serving as executive vice president of the Trump Organization and special counsel to Trump when he co-created a website, “Should Trump Run.com” that “was initially used to poll readers to gauge their support of Trump as a presidential candidate.” In March 2011, Cohen even flew to Iowa to meet GOP officials and the media about a possible Trump presidential run. After Cohen’s visit to Iowa, Trump publicly bragged, “My representative was swamped by supporters when he we went to Iowa.”
These actions prompted a complaint filed in 2011 with the Federal Election Commission (FEC) by a private citizen against not just the Trump Organization but also against Trump and Cohen individually for alleged violations of federal campaign laws. Specifically, the claim was that Trump accepted “excessive or impermissible contributions” from his corporation, the Trump Organization, in connection with the campaign website and Cohen’s trip to Iowa.
This triggered a formal investigation by the FEC resulting in a 20-page investigatory memo. This initial FEC investigation, dated Jan. 25, 2013, found “reason to believe…that Donald J. Trump violated 11 C.F.R. § 100.72(a)” (making and accepting disbursements with impermissible funds) and that Cohen and the Trump organization had also violated federal election laws.
However, on Sept. 18, 2013, the FEC rendered an 11-page ruling in Trump’s favor, in essence on a technicality, that since Trump never declared himself in 2012 a formal candidate, the FEC’s rules didn’t apply. Interestingly, one of the two FEC commissioners who ruled in Trump’s favor at the time was Don McGahn, who until recently was Trump’s White House counsel.
And before that, there was the 2000 investigation of Trump by the New York State Lobbying Commission. This time Trump set out to torpedo the efforts of Native Americans to open casinos in New York State that would in his view hurt his casino’s business in Atlantic City, New Jersey. To accomplish this scheme, Trump enlisted the help of his long-time buddy Roger Stone (yes, that Roger Stone), who created a shell company called, “The New York Institute for Law and Society.” Then Trump secretly funded this shell company with $150,000 to run ads that not only opposed the casinos, but also employed Trump’s trademark bigotry by claiming that Native Americans would literally bring drugs and crime (sound familiar?!). One Trump funded ad featured a picture of cocaine lines and drug needles and rattled off alleged abuses by the tribe seeking to build the casino, with the text, “Are these the new neighbors we want?”
The New York Lobbying Commission investigation included a deposition of Stone who admitted under oath that everything he did with this campaign was approved by Trump. For example, a copy of the ad blaming the Native Americans for bringing drug dealing to New York, has writing on it that reads, “Roger, do it — Donald.” Stone also testified that the “only reason” the Institute existed was to hide the involvement of Trump from the public.
The Commission found that Trump and Stone had failed to disclose to the state lobbying commission that Trump had secretly financed newspaper advertisements. The commission could have recommended Trump for criminal prosecution. However, Trump, along with Stone, agreed to pay a then record fine assessed by the commission of $250,000 without admitting wrongdoing. After the deal was reached, Trump told the press, “It’s been settled. We’re happy it all worked out nicely.”
Hmmm, does a shell company and secretly funneling money so the public doesn’t get the full picture of what Trump is up to in connection to a campaign sound familiar? Trump employed similar tactics when paying off Karen McDougal and Stormy Daniels, using two different shell companies created by Cohen to pay these women hundreds of thousands of dollars to keep them silent before the 2016 election.
Both the lobbying disclosure laws and the FEC laws have the same policy goal of ensuring transparency so that the public can have all relevant facts about the finances of a campaign for a candidate or for an issue. So any argument by Trump now that in good faith he didn’t have any idea that trying to hide payments made in connection with his campaign was wrong simply doesn’t fly—at least not for those who have any modicum of common sense.