Friday, August 24, 2018

If Payment Pursuant to a Non-Disclosure Agreement is a "Campaign Contribution" ...

Well, Mueller & Co. seem to be closing in on Donald Trump. Not for anything related to the supposed purpose of their investigation ("collusion"/"Russian meddling"), but for purchasing the silence of his former sexual partners.

His former attorney, Michael Cohen, pleaded guilty a few days ago to, among other things making an illegal campaign contribution and claims he did so at the direction of a candidate for federal office (Trump).

Other parties allegedly connected to the contribution (National Enquirer CEO David Pecker and Trump Organization CFO Allen Weisselberg) have been granted immunity, indicating that the investigation doesn't end with Cohen's plea. They're obviously after Trump himself.

So, is paying someone pursuant to a non-disclosure agreement a "campaign contribution?"

The legal theory here seems to be that it is if the intent is to influence the outcome of the election.

In my most recent Garrison Center op-ed, I argue that in this instance that might not have been the intent at all. Trump has a long history of paying for silence when he wasn't even running for office. Who's to say that it wasn't the Wrath of Melania, rather than losing votes, that he was worried about here?

But let's play along with the theory.

If I run for president tomorrow and it turns out that 20 years ago I paid someone pursuant to an NDA, how can anyone know I wasn't thinking about eventually running for president at the time?

Absent evidence that Trump's specific intent with this NDA was to affect the outcome of this election, the theory here implicitly disqualifies anyone who has ever traded something of value for another party's signature on an NDA from ever running for public office. After all, if eventually running for office was on -- or even in the  backs of -- their minds at the time, those NDA payments were illegal (and unreported) campaign contributions made for the purpose of influencing future elections, right?

That implicit disqualification would also necessarily preclude any and all incumbent members of Congress who have used NDAs to forbid interns from talking in return for the internship opportunities, as part of settlements to keep sexual harassment claimants' mouths shut, etc. from running for re-election.

And, again stipulating to the correctness of the theory, does anyone want to claim -- with a straight face, at least -- that when John Brennan demanded NDAs from people involved in the Benghazi debacle, he wasn't doing it at least partially to influence the outcome of the 2016 presidential election, acting as a Michael Cohen to Hillary Clinton's Donald Trump?

I'm starting to like this whole idea that an NDA is an illegal campaign contribution. I suspect that if applied in a fair and even-handed manner, it could reduce the population of Washington, DC by 537 or so, and negatively impact inbound migration considerably.

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