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Michael Cohen Michael Cohen. Photo: Seth Wenig/AP

After Michael Cohen pled guilty to eight federal offenses—two of which were campaign finance violations—commentators began to speculate about President Donald Trump’s exposure to criminal and civil liability for those same offenses. While the reaction to the plea has been varied, a general theme is that Cohen’s plea almost assuredly demonstrates Trump’s guilt. We think there are several unresolved factual and legal issues which, until they are settled, preclude any firm conclusion of liability. Here, our focus is not on the payment to Karen McDougal. That payment involves a possible violation of 52 U.S.C. §30118(a), which makes it “unlawful for … any corporation … to make a contribution or expenditure” in connection with a Presidential campaign. If, as alleged, the payment was made by a media company in coordination with the Trump campaign, the payment constituted an unlawful in-kind contribution by a corporation.

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