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As I understand it, the charges against Trump are brought by the State of New York regarding a falsification of filing records by a campaign which was determined to have been made to influence (promote or prevent) the election through unlawful means. This is better explained by AP,

Prosecutors say the crime Trump committed or hid is a violation of a New York election law making it illegal for two or more conspirators “to promote or prevent the election of any person to a public office by unlawful means.”

Merchan gave the jurors three possible “unlawful means” they can apply to Trump’s charges: falsifying other business records, breaking the Federal Election Campaign Act or submitting false information on a tax return.

In the case of Hillary Clinton, her campaign funded the Steele dossier by proxy of the investigative company Fusion GPS and falsified records about it. It was subsequently determined at a federal level to have been a violation of FEC regulations and it was given a civil penalty:

The DNC was fined $105,000 and the Clinton campaign was fined $8,000, according to a letter sent by the Federal Election Commission to a conservative group that requested an inquiry.

Political candidates and groups are required to publicly disclose their spending to the FEC, and they must explain the purpose of any specific expenditure more than $200. The FEC concluded that the Clinton campaign and DNC misreported the money that funded the dossier, masking it as “legal services” and “legal and compliance consulting” instead of opposition research.

What is the argument that one of these should be criminal, and the other civil? And why wasn't Hillary Clinton charged with criminal misfiling herself., ie., "false entry in the business records of an enterprise" when her campaign—also based in New York—falsified her filings and called "opposition research" by "legal services".

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    These all seem to be legal questions rather than political ones: comparing federal and state laws, asking about the facts of two different cases, etc. The Law site is probably a better place for this.
    – Giter
    Commented Jun 3 at 0:48

5 Answers 5

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Just on a general level, I think you've answered your own question. The Clinton campaign could have been in complete compliance with FEC rules simply by changing the filing status. They had no particular reason to hide such opposition research — which is both legal and common in political circles — and whether or not one agrees with the dossier it clearly wasn't grossly fabricated. I can imagine reasons why the campaign might have wanted to hide their involvement, but at the end of the day this seems to amount to the campaign stretching the letter of the law a bit too far, not actually perverting the course of the election, and only merited a slap on the wrist.

By contrast, Trump made false representations specifically to hide what would have been damaging information from the electorate. His goal was to keep American citizens ignorant of unflattering information; he hid these payments so there was no back-trail that would connect him to Stormy Daniels. Had he been a more normal politician he would not have worried about such stories going to press and dealt with them publicly in the media. That's something politicians are forced to deal with frequently. People would have the information, and it would be his task as a politician to win them to his cause regardless.

The law is meant to be sensitive to context. Had Clinton hid funds to have Steele produce libelous, false, defamatory material, she might have been subject to criminal penalties as well. But that doesn't seem to be what Clinton intended (per the investigation), and that's not what Steele did.

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Here is the portion of New York State law that Trump was charged with as part of the hush money case:

Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.

Misdemeanors are criminal charges, not civil.

A misdemeanor is a type of offense punishable under criminal law. A misdemeanor is typically a crime punishable by less than 12 months in jail.

This is why the charges against Donald Trump had to be criminal, not civil; that is what the law mandates.

Here is the relevant part of the enforcement rules for violating the reporting requirements that Hillary Clinton and the DNC were accused of violating under the federal U.S. Code (the Commission is the investigatory body for such a violation):

...the Commission shall attempt, for a period of at least 30 days, to correct or prevent such violation by informal methods of conference, conciliation, and persuasion, and to enter into a conciliation agreement with any person involved. Such attempt by the Commission to correct or prevent such violation may continue for a period of not more than 90 days ... A conciliation agreement, unless violated, is a complete bar to any further action by the Commission, including the bringing of a civil proceeding under paragraph (6)(A).

The Commission chose to reach a settlement under these terms, instead of mandating a civil penalty, and since Hillary Clinton and the DNC settled, the Commission is prohibited from additional civil charges apart from the settlement.

The simplified version, is that the laws they were charged with violating are simply different, and one is civil and the other is criminal, by definition.

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    I never said misdemeanors were civil. I said in Hillary's case it was civil. She only paid money. She never faced the threat of criminal charge. The question is why wasn't Hillary charged under the same state statue -- her campaign was also based in New York? Commented Jun 3 at 0:52
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    Also, Trump was not actually charged with stuff you claim in the first para, except as an aggravating factor. Sound weird, but that's actually possible in the US and was done in this case. Commented Jun 3 at 14:20
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    @EvanCarroll Trump wasn't charged in New York because of where his campaign was, he was charged there because that's where the crimes occurred. You'd need some kind of legal theory to give New York (or any other state) jurisdiction over the Steele transaction. Steele wasn't state-side (he's in London); this would have been an international transaction and Federal jurisdiction is absolutely the appropriate one.
    – Michael W.
    Commented Jun 3 at 16:42
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    Related Law SE Q: law.stackexchange.com/questions/103050/… Commented Jun 4 at 9:30
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    Doesn't really answer the question. Either Clinton COULD HAVE been charged under the same statute Trump was, or she couldn't have. If she could have, then this has the appearance of selective prosecution. If she couldn't have, I don't see how your answer explains why that is. Commented Jun 5 at 0:12
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Trump wasn't convicted of failing to file a claim about hush money but rather falsifying records about that payment.

What was Trump convicted of? Details on the 34 counts and his guilty verdict

Trump was charged with 34 counts of falsification of business records in the first degree, which is a felony in New York. He pleaded not guilty when he was arraigned last year.

All 34 counts are around falsification of business records which happen to be related to how he paid for the hush payments.

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    "failure to file" means "failure to file properly" not the total lack of a filing. But I've updated the question. Commented Jun 2 at 23:51
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    @EvanCarroll No I mean falsification of records as that isn't even close to being the same as failure to file. Falsification of records means that you did file and you lied about what is being filed.
    – Joe W
    Commented Jun 3 at 0:15
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    You're missing the point and not addressing the question. By your description both falsified records. I've updated the question Commented Jun 3 at 0:33
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    @EvanCarroll I disagree, there is a big difference between failing to file something and filing something that is false. While both of them can be considered an attempt to cover something up in the case of failure to file the difference is when mentioned if the party that failed to file does so correctly, falsifies it, or continues to fail to file.
    – Joe W
    Commented Jun 3 at 0:52
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    @EvanCarroll You seem to be missing the fact that the Clinton issue was around how campaign money was spent while the Trump issue was around how his business spent money and recorded those records.
    – Joe W
    Commented Jun 3 at 1:07
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Why is Trump's FEC filing case different from Hillary Clinton's?

Because the FEC deadlocked, 3 Republicans vs 3 Democrats, so Trump was never charged by the FEC. Despite someone going to jail for related crimes, the 3 republican FEC commissioners will not investigate Trump. No matter how obvious the crime.

Hillary, on the other hand, doesn't have the personal loyalty of half the commission, so they investigated her.

That is why Hillary was punished by the FEC but Trump was not.

Now, the body of your question talks about Trump's charges related to his role in a corrupt organization, and the falsification of business records. That is not in the FEC purview.

The Hillary campaign filed a payment incorrectly, according to the FEC. They made an argument, so it arguably wasn't willful. It did get them punished. But there was no further cover up.

The Trump campaign denied any such payment. The people involved fabricated companies, lied to banks, filed false tax details, and procured illegal donations. All of which the campaign itself was never charged with. In fact, the only one ever charged for any of that was Cohen. AMI was given immunity. And Cohen went to jail for conspiring with AMI and Trump. That is a ton of illegally. Trump was charged in none of it.

But Trump broke more laws by fabricating false NY State documents to hide his part in all this crime.

That is what Trump got caught with.

It's not an east charge to make stick, especially the felony version. The Hillary campaign may have done something similar. But much smaller scale. Already punished. Arguable about which, if any, specific NY State documents were falsified. And it was the Hillary campaign, not Hillary herself, that did it.

But if sufficient evidence comes out, I hope more politicians are charged, not fewer. The Rule of Law demands it.

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  • Thanks, I like this answer the best by a long shot. Commented Jun 7 at 0:03
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The biggest difference here would be Michael Cohen. It's one thing to have an investigation from the outside, but quite another to have someone from the inside, who can testify as to what went on. Michael Cohen pleaded guilty to tax evasion and election law violations (emphasis mine)

[Federal prosecutors] announced today the guilty plea of MICHAEL COHEN to charges of tax evasion, making false statements to a federally-insured bank, and campaign finance violations. The plea was entered followed the filing of an eight-count criminal information, which alleged that COHEN concealed more than $4 million in personal income from the IRS, made false statements to a federally-insured financial institution in connection with a $500,000 home equity loan, and, in 2016, caused $280,000 in payments to be made to silence two women who otherwise planned to speak publicly about their alleged affairs with a presidential candidate, thereby intending to influence the 2016 presidential election.

There isn't any analogue to the Clinton case here. Nobody from the DNC or Clinton pleaded guilty to funding the Steele Dossier for the purposes of influencing the 2016 election. The reason why Cohen pleaded guilty to the election law violations, however, was he was facing some serious jail time on those tax evasion charges (all links original)

Cohen pled guilty to campaign offenses because he was trying to sell himself to federal prosecutors as a cooperating witness against Trump, hoping they prosecutors would ask the judge not to send him to prison; and the prosecutors took the plea to campaign offenses because they knew they’d never have to prove those offenses in court or defend them on appeal (generally, a defendant who pleads guilty waives his right to appeal). In the end, prosecutors did not accept Cohen as a cooperator because they found him too dishonest and unreliable — he was sent to prison after they submitted a scathing pre-sentencing memorandum to the judge. And neither the Justice Department nor the Federal Election Commission proceeded against Trump because they lacked evidence of federal campaign violations.

What hurt Trump (and may yet prove to be a reversible error on appeal) is that prosecutors put Cohen on the stand and the judge allowed that guilty plea to be introduced

Even though prosecutors are not supposed to use Cohen’s guilty pleas to argue that Trump is guilty of campaign crimes, that is exactly what they are doing — and Merchan is letting them do it. In the prosecution’s opening statement, for example, in the context of explaining to the jury that Cohen, Pecker, and Trump had committed a “conspiracy” of “election fraud. Pure and simple,” Colangelo elaborated:

Cohen will also testify in this trial that he ultimately pled guilty and went to jail for causing an unlawful corporate contribution in connection with the Karen McDougal payments and for making an excessive campaign contribution in connection with the Stormy Daniels payoff.

This is breathtakingly mendacious. Colangelo was not properly admonishing the jury that Cohen is a witness of dubious credibility. He was signaling to them that the NDA payments to McDougal and Daniels — for which he had just blamed Trump in an extensive narrative — were crimes for which Cohen “went to jail.” In reality, Cohen was sentenced to prison because of his lucrative fraud crimes, not the FECA charges. The SDNY never charged Trump, and it almost certainly wouldn’t have charged Cohen if he hadn’t agreed to plead guilty.

To put this a different way, both Trump and Clinton were investigated on the Federal level. Neither were charged with a crime in Federal court.

New York City has a prosecutor who wanted to charge Trump with a NY State law regarding bookkeeping crimes, and he had someone who had already pleaded guilty to the attendant Federal crime (plus a paper trail to tie the two together). A NY judge allowed the state crime to be prosecuted because of that guilty plea.

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  • The prosecution did not need to prove another crime was committed and concealed beyond a reasonable doubt, just that it was reasonably likely. This was also covered in the juror instructions before deliberations happened. The prosecution needed to prove that the documents were falsified (beyond a reasonable doubt) and that it was likely (but not proven beyond a reasonable doubt) that the falsification was to cover up a different crime. That's why Cohens guilty plea was admitted and deemed allowable (evidence of a likely covered crime by Cohen, and likely Trump).
    – GOATNine
    Commented Jun 4 at 19:53
  • Adding to the above comment as I ran out of room. Cohen plead guilty, whcih proves the crime happened, and his association with Trump during the timeframe makes it likely Trump was aware/involved, which is enough to satisfy the "covering up another crime" part of the statute that bumped the falsifying documents charges up to felony counts.
    – GOATNine
    Commented Jun 4 at 19:55
  • @GOATNine Actually they did. NY State mandates that there be willful intent. That the defendant did so with intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof. Cohen plead guilty to hiding the payment (and there was no trial to that effect). There's no evidence Trump that Trump was thinking of FECA when he write the checks in 2017, let alone that he ordered Cohen to hide the payment like he did.
    – Machavity
    Commented Jun 5 at 16:04
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    Slight difference; they did not need to prove the crime happened, only the intent to hide/help a crime. The crime needn't actually even happen. And they need to prove the intent beyond reasonable doubt. But needn't prove the crime itself at all.
    – bharring
    Commented Jun 5 at 16:40

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