- The Washington Times
Wednesday, January 9, 2019

Suspicions of campaign finance crimes attracted federal investigators, spurred a referral to the Justice Department and led to calls for a special prosecutor to step in.

Sound familiar?

The politician in prosecutors’ crosshairs was now-Senate Democratic Leader Charles E. Schumer, back when he was a freshman congressman from New York.

He allegedly used his taxpayer-paid state Assembly staff to work on his 1980 congressional campaign. What helped Mr. Schumer dodge the campaign-finance bullet was a combination of legal loopholes and lack of political will to force prosecution — including then-Gov. Mario Cuomo putting the brakes on legal action.

President Trump finds himself in similar legal jeopardy over payments made in 2016 to silence two women who say they had sex romps with him.

Some analysts said there are parallels. Others rejected any comparison.

But the Schumer case highlights the often fickle process that decides who gets charged, who gets fined and who gets let off the hook for campaign finance shenanigans.

From Watergate to President Barack Obama, whose campaign had to pay a $375,000 fine for missing key reporting deadlines, to 2008 presidential hopeful John Edwards, who beat the rap on alleged illegal payments to hide a mistress who was carrying his child, analysts said history is littered with campaign shenanigans.

Making sense of who gets dinged and who escapes severe punishment is trickier.

“It seems like the [Federal Election Commission] has been pushed aside so the political parties can play fast and loose with campaign finance laws,” said political science professor Michael G. Miller, who researches campaign finance issues at Barnard College in New York City.

Mr. Miller blamed the confusion and inconsistencies on a weak FEC — he remarked that lawmakers resist strengthening an agency that polices their campaigns — and a Justice Department that too often bows to political pressure.

The question remains if prosecutors will ever charge Mr. Trump, refer the case to Congress for potential impeachment proceedings or drop it altogether.

Mr. Trump is exposed to potential criminal charges stemming from the Aug. 21 guilty plea by his personal lawyer and fixer, Michael Cohen, to making illegal hush money payments to influence the 2016 presidential election. Cohen said the payments were made at Mr. Trump’s direction.

In the scheme, National Enquirer publisher American Media Inc. in August 2016 paid $150,000 to Playboy “playmate” Karen McDougal for her story about a 10-month affair she said she had with Mr. Trump. The magazine never ran the story, a tactic known as “catch and kill.”

In October 2016, Cohen paid $130,000 to porn star Stormy Daniels as part of a nondisclosure agreement to silence her story about a one-night stand she said she had with Mr. Trump in 2006.

Despite Cohen’s guilty plea, legal experts debated whether his actions amounted to crimes. But he would be a powerful witness for the prosecution should the case against Mr. Trump go to trial.

Mr. Schumer’s Senate office and his campaign refused to comment on any similarities.

Paul S. Ryan, vice president for policy and litigation at Common Cause, who drafted complaints to the Justice Department and Federal Election Commission saying that Mr. Trump’s payments violated campaign laws, said he saw at least one parallel between the Trump and Schumer cases.

“Federal campaign finance law regulates anything of value given to a candidate for federal office as a contribution and subjects anything given to a candidate for federal office to contribution limits,” he said. “People were paid out of New York state coffers to work on the Schumer 1980 congressional campaign … that’s an in-kind contribution to the Schumer campaign, if all that was true.”

The same principle applies to payments by Trump associates to the playmate and the porn star.

Others said the two cases were not similar.

“I don’t think that [the Schumer] case involved any federal campaign finance violations at all,” said former FEC official Erin Chlopak, director of campaign finance strategy for the Campaign Legal Center, a nonpartisan watchdog in Washington.

“It certainly is distinguishable from the alleged knowing and willful violations of the corporate contribution ban and the contribution limits for the intended purpose of hiding information from the public in a presidential election,” she said.

A more fitting comparison, she said, was President Richard Nixon’s personal attorney, Herbert Kalmbach, who was sentenced to 18 months in jail for paying hush money to the Watergate burglars.

Some Republicans have tried to draw analogies between Mr. Trump and Mr. Edwards, a former Democratic senator from North Carolina who prosecutors failed to convict after his 2008 presidential campaign recruited wealthy donors to pay more than $1 million to keep his pregnant mistress, Rielle Hunter, under wraps.

The affair with Ms. Hunter, a filmmaker hired to work on the Edwards campaign, was exposed by the National Enquirer. In August 2008, seven months after suspending his campaign, Mr. Edwards admitted the affair.

In 2011, Mr. Edwards was indicted on six felony charges that could have put him in prison for 30 years. At trial, Mr. Edwards’ lawyers argued that the payments were personal favors and outside the campaign, therefore not subject to campaign finance law.

After a jury acquitted him on one count and declared a mistrial on a second count, prosecutors dropped the remaining charges.

Other presidential candidates to face probes included Mr. Obama, who was hit with the $375,000 fine, one of the largest in history, for missing key reporting deadlines for nearly $2 million in contributions during his 2008 campaign.

The Obama campaign characterized the violations as routine reporting errors suffered by most presidential campaigns, with Mr. Obama’s record fundraising haul creating record numbers of those errors.

The fines levied on the Obama campaign were civil as opposed to criminal penalties, as are all penalties handed out by the FEC.

The FEC also slapped a $219,000 fine on Vice President Joseph R. Biden’s 2008 presidential campaign for violations including accepting contributions above the legal limit and failing to adequately pay for rides on a private jet owned by a New York hedge fund.

On the criminal side, federal prosecutors charged conservative author and filmmaker Dinesh D’Souza in 2014 with making a $20,000 contribution — twice the legal limit — to New York politician Went Long. He pleaded guilty and was sentenced to eight months in a halfway house, five years of probation and a $30,000 fine.

Mr. Trump pardoned Mr. D’Souza in May 2018, saying, “I’ve always felt he was very unfairly treated.”

And currently, Rep. Duncan Hunter, California Republican, and his wife Margaret are set to go to trial in September on federal criminal charges of spending more than $250,000 of campaign funds on personal expenses, including vacations in Italy and Hawaii.

They could face up to five years in prison if convicted.

In the Schumer case, the U.S. Attorney for the Eastern District of New York investigated for nearly two years after a report in the Village Voice about state Assembly staffers working almost exclusively on Mr. Schumer’s campaign.

In December 1982, a recommendation to seek an indictment of Mr. Schumer was sent to the Justice Department, where it landed on the desk of then-Associate Attorney General Rudy Giuliani.

Mr. Giuliani, who now serves as Mr. Trump’s personal attorney, did not respond to questions about how he views that case in hindsight.

A heated debate at the Justice Department focused on potential mail fraud charges, which often are used to bring federal charges for criminal activity that otherwise fall under state law. The mail fraud statute could have snared Mr. Schumer because the allegedly illegal campaign workers received state government paychecks through the mail.

Mr. Ryan, the Common Cause lawyer, said he was surprised by the apparent lack of discussion about campaign finance violations. He noted that contribution limits went into effect in 1976 with a $1,000 cap.

Justice decided in January 1983 not to seek an indictment, saying the federal government lacked jurisdiction for the state crimes and kicked the case back to New York, where Mr. Cuomo, a Democrat, promptly decided not to pursue the matter further.

However, Brooklyn District Attorney Elizabeth Holtzman in May 1983 appointed a special prosecutor to go after Mr. Schumer.

Mr. Schumer fought back and prevailed in a state Supreme Court by challenging Mrs. Holtzman’s authority to appoint a special prosecutor.

Mrs. Holtzman, a Democrat, previously occupied the House seat won by Mr. Schumer. She gave it up to seek a Senate seat but lost, and then successfully ran for district attorney in Brooklyn.

In court filings, Mr. Schumer noted that Mrs. Holtzman endorsed him for Congress but he didn’t endorse her for district attorney, implying that the probe was political retribution.

• S.A. Miller can be reached at smiller@washingtontimes.com.

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