On Wednesday, President Donald Trump submitted his 2017 financial disclosure report, and he included a payment he made to attorney Michael Cohen as reimbursement for a payment Cohen made to a third party in 2016 (the third party was unnamed but is believed to be Stormy Daniels). While Trump appropriately disclosed his payment to Cohen, the Office of Government Ethics (OGE) wrote in a letter to Deputy Attorney General Rod Rosenstein that Trump should have listed Cohen’s payment on last year’s report as it qualified as a reportable liability.
The fact that OGE referred the matter to the U.S. Department of Justice is no small matter, and Adav Noti of the Campaign Legal Center likened it to a criminal referral.
“That is absolutely equivalent to a criminal referral, particularly because it’s the Office of Government Ethics that decides what does or doesn’t need to get reported,” Noti, who is also former Associate General Counsel for the FEC, said. “The president doesn’t get to decide that, and hasn’t apparently provided any counterargument as to why the agency’s determination was wrong.”
So what exactly would be the criminal issue here?
Former OGE Director Walter Shaub said Wednesday that by not including Cohen’s payment in last year’s disclosure, he appears to be in violation of 18 U.S.C. § 1001, which covers providing false statements or concealing material facts in a government matter. Violations of that statute are punishable by up to 5 years in prison and a fine.
Of course, it should be noted that DOJ policy says that a sitting president cannot be indicted with criminal charges, but Shaub also raised the issue of a possible civil issue. He claimed that Trump may be in violation of 5 U.S.C. app. § 104, which says that the Attorney General can bring a civil action against someone who fails to report required information in their financial report. A violation can result in a fine of up to $50,000.
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