Editor’s Note: David Orentlicher is the Judge Jack and Lulu Lehman Professor at the William S. Boyd School of Law at University of Nevada, Las Vegas, where he specializes in constitutional law and health law. He also serves as a Democrat in the Nevada Assembly. The views expressed in this commentary are his own. View more opinion on CNN.
For good reason, we say that no person is above the law. So it is essential that prosecutors hold former President Donald Trump accountable for any potential misconduct. And there is plenty to try to hold Trump accountable for: his role in the violent attack on the US Capitol and on our democracy on January 6, 2021, his other apparent efforts to overturn the 2020 presidential election and his alleged mishandling of classified documents. Appropriately, federal and state officials are investigating or already suing for these many misdeeds.
But in his decision to prosecute Trump because of his alleged role in falsifying business records related to hush money payments to women who alleged extramarital affairs with him during the 2016 campaign, New York District Attorney Alvin Bragg has taken the wrong path to accountability for the former president.
Trump’s relationship with adult film star Stormy Daniels and his alleged payments to her, via his former lawyer Michael Cohen, raise substantial ethical concerns — but they are not matters that should be addressed in a courtroom.
Bragg is charging that Cohen’s payoffs to Daniels, allegedly on Trump’s behalf, violated election laws. While the indictment doesn’t specify which laws, the most likely candidate is Trump’s failure to report the payments as a campaign expenditure. In this view, because the payments were made to influence the 2016 presidential election by shielding Trump from negative attention, they constituted campaign expenditures. Trump denies the charges.
But this is a dubious legal theory. Since candidates are not allowed to use their campaign funds for personal expenses, and Trump’s relationship with Daniels was a personal matter, it actually makes sense that Trump didn’t report the payments on campaign filings.
Indeed, there are a host of personal expenditures a candidate makes over the course of their campaign that could conceivably benefit their candidacy, but it would be wrong to require their disclosure and, moreover, allow their reimbursement.
Indeed, this legal theory has never been used successfully against a candidate, including an attempt made to prosecute former Sen. John Edwards. His campaign donors had made payments during his 2008 presidential campaign “to facilitate Edwards’ extra-marital affair, and to conceal it and the resulting pregnancy from the public,” in the words of the indictment against him. He was later acquitted.
To be sure, Cohen pleaded guilty to campaign finance violations for his role in the payments to Daniels, but he did so while also pleading guilty to charges he faced because of his own tax evasion and financial fraud. Even if Cohen believed the campaign finance charges meritless, he may have accepted them to reduce his exposure to the other charges filed against him.
Moreover, consider the implications of treating hush money payments — which are not illegal — as campaign expenditures that have to be reported in campaign finance filings. If a disgruntled lover threatens to disclose past intimacies, a candidate would open the door to the former lover going public by not making hush money payments. But if the candidate pays the hush money, the payments would then need to be included in the candidate’s financial reports, which are public records.
Either way, candidates would have to sacrifice the privacy of their consensual sexual relationships once they throw their hats in the ring. The public has a legitimate interest in the health and finances of candidates, but not their sex lives. We should not be policing the bedrooms of candidates, especially when some consensual relationships are unfairly stigmatized.
But it is not only wrong for Bragg to file questionable charges, it’s also unnecessary — charges can be brought for Trump’s serious misconduct on other matters. Unfortunately, bringing misguided charges is a recurring theme with Trump and has compromised the effort to hold him accountable.
Consider his second impeachment. While the US House of Representatives acted correctly in bringing charges against Trump for his role in the attack on the Capitol on January 6, House Democrats filed charges that were legally problematic instead of charges that were solidly grounded.
When the House accused Trump of incitement in the January 6 violence, it wasn’t clear that his actions satisfied the very strict legal standard for proving incitement. For example, Trump sent mixed messages when he spoke to the assembled crowd before it marched on the Capitol, telling them both to fight like hell and peacefully make their voices heard.
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In contrast, the evidence clearly showed that Trump failed miserably in his duty as president to “protect and defend the Constitution” by not stemming the violence once rioters breached the Capitol. The second impeachment should have been based on this obvious dereliction of duty.
Bragg and other prosecutors ought to hold Trump accountable for his misconduct, and both criminal and civil charges may be necessary to do so. But it also is essential that charges be brought for misdeeds that are truly unlawful. Once law enforcement officials stretch the law in pursuit of one defendant, they will inevitably do so for other persons, and that will ultimately undermine the rule of law.