As Trump scandals go, the Stormy Daniels affair — what I’ve decided to call The Perfect Stormy — is one of those that could only happen to this president. It now appears that it’s more than just a smarmy story, because laws may have been broken.
To catch you up: Back in January, the Wall Street Journal reported that Michael Cohen, Donald Trump’s personal lawyer and all-around fixer, had set up a shell company in Delaware in the fall of 2016 for the sole purpose of passing a $130,000 payment to Daniels (whose real name is Stephanie Clifford). Soon after, In Touch magazine published an interview with Daniels in which she detailed how she and Trump had an on-again, off-again affair in 2006 that began in Lake Tahoe just after the birth of his son Barron, when his wife Melania was back home in New York.
The liberal good-government group Common Cause filed complaints with the Federal Election Commission and the Justice Department, alleging that the payment was an illegal in-kind contribution to the Trump campaign intended to quash a potentially embarrassing story and thereby help Trump get elected. Yesterday, Cohen issued a statement implying that the $130,000 was his own money. Here’s the key part:
In a private transaction in 2016, I used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford. Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly. The payment to Ms. Clifford was lawful, and was not a campaign contribution or a campaign expenditure by anyone.
What’s odd about this is that he doesn’t say he paid her $130,000 with his own personal funds, he says he used his own personal funds to facilitate a payment. Which could well mean that he used his personal funds to pay whatever fees were necessary to establish the Delaware shell company, but the money came from somewhere else. Like, I don’t know, from Donald Trump. For instance.
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Furthermore, if we assume the second sentence is true and neither the Trump Organization nor the campaign was involved, what it leaves out is the involvement of Trump himself. Did Cohen discuss the payment with the person on whose behalf he was making it? Did Trump approve the amount? If Cohen put up the whole $130,000, did Trump personally (as opposed to the Trump organization or campaign) reimburse him?
To sort through the legal questions at play, I spoke today to Adav Noti, a former FEC lawyer who is now with the Campaign Legal Center.
“Reading between the lines,” Noti said, Cohen’s statement “strongly suggests that he fronted the money for the payment and was reimbursed by some entity or person that was not the Trump Organization or the Trump campaign.”
But here’s where it gets interesting. If Cohen made the payment and Trump reimbursed him, they might have had to report that payment, like all payments candidates make to their campaigns. Trump might try to claim that it had nothing to do with the campaign and was a private matter, but that might not pass the smell test, given that it happened just weeks before the election.
But if Cohen paid the $130,000 out of his pocket — which is what he seems to be hoping people take from his statement — then that would mean he may have made an illegal in-kind contribution to the campaign. He obviously wants to protect Trump, but in doing so he may be implicating himself.
“Every single campaign finance lawyer I’ve talked to about this today,” said Noti, “we are all scratching our heads as to why he would put out this statement at all, for exactly that reason. It seems to create exposure, completely gratuitously.”
But you shouldn’t anticipate Cohen going to jail, at least not for this. “The FEC’s enforcement activity for the last eight to 10 years has been weak to nonexistent,” Noti says. Among other things, the commission needs four out of six commissioners to authorize action, and right now they only have four commissioners. While the Justice Department could pursue a criminal case, that isn’t all that likely.
But even if the government doesn’t decide to pursue a case against Cohen, this won’t be the last we hear of him. He’s an interesting character in his own right, a thuggish Trump mini-me whom the boss calls on when he wants to send an empty lawsuit threat or attempt to intimidate someone. When Cohen gets riled up, he often sounds like he’s acting out a scene from “Goodfellas.”
“I’m warning you, tread very f—ing lightly, because what I’m going to do to you is going to be f—ing disgusting. You understand me?” he once told a journalist who had asked about allegations Ivana Trump made against her ex-husband. Cohen also has acted as a liaison between Trump and well-heeled figures in the former Soviet Union, which I promise has brought him to the attention of Robert S. Mueller III.
But let’s step back for a moment and marvel at the fact that The Perfect Stormy has drawn so little attention compared to what would happen if it were any other president. Remember: The president may have had an affair with a porn star who was paid $130,000 in hush money to keep it quiet, and we treat it like it’s the third- or fourth-most scandalous thing that happened this week.
But if Democrats take back one or both houses of Congress in November, this is definitely something they should open an investigation on. I’m sure if they do so, sober people on the left and center will tell them not to “distract” themselves and everyone else from more serious matters by investigating it. But the thing about Trump scandals is that you never know where they’ll lead, and you won’t find out until you start passing out subpoenas. Let’s not forget that it wasn’t until Republicans mounted their seventh or eighth congressional investigation of Benghazi that they came across the fact that Hillary Clinton had a private email server. It may have been both irrelevant to Benghazi and of little real importance, but it sure came in handy for them.
There are few people in Trump’s orbit more slavishly loyal to him than Michael Cohen; he ended his statement on the payment to Stormy Daniels with the words, “I will always protect Mr. Trump,” which is not the kind of thing you expect to hear from a lawyer. That’s exactly the kind of loyalty Trump demands — and that he doesn’t seem to be able to get from too many people.
This affair shows exactly why. If you sign on with Trump, sooner or later you’re going to find yourself doing some pretty unsavory things.