On Tuesday evening, though, Cohen’s forceful response to the Journal was undercut substantially when the New York Times reported that Cohen had indeed had a hand in getting the money to Daniels — and, in fact, that he had “facilitate[d]” the payment with his “own personal funds.”
“Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford,” Cohen wrote in a statement, using Daniels’s legal name of Stephanie 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.”
There’s a lot of nuance in that statement and in the broader situation. We spoke with Lawrence Noble, senior director and general counsel at the Campaign Legal Center, by phone to walk through where the legal boundaries are — and if Cohen’s assessment that this was not a campaign expenditure is defensible.
The first question, the one that Cohen’s statement tries to settle, is whether this counts as a campaign contribution. Obviously if money paid to Daniels had been routed through the campaign, then that would have been a campaign contribution. But that’s not the only way in which the payment would qualify as a contribution.
“It goes beyond the question of well, did it go through the campaign,” Noble said. “If it’s for the purpose of influencing the election, it’s a campaign contribution. The question here is, was it done for the purpose of the election?”
“Evidence that it was is, for one thing, the affair was about 10 years old at the time and all of a sudden about a month before the election they allegedly decide to pay her to not talk about it,” he added.
However, that’s not necessarily proof that the payment was a campaign contribution. Remarkably, if Cohen as part of his duties at the Trump Organization regularly made similar payments to other people in the same context — if, that is, he regularly paid tens of thousands of dollars to women to buy their silence — it would suggest that this particular payment might simply be business as usual and not related to Trump’s electoral efforts.
“If there was a history of these type of contributions, donations or gifts to Donald Trump from whoever gave it, then you might say, ‘Well, it’s just another gift that they were giving,'” Noble said.
This has come up before. Former U.S. Senate candidate Jeffrey Bell (R-N.J.), who died this week, was once investigated by the Federal Election Commission after receiving gifts from his mother that might have exceeded federal contribution limits, Noble said. If a candidate’s mother gives him $50,000 a month regularly, a $50,000 gift right before the election may not violate campaign finance laws. If Trump regularly asked Cohen to pay out money and Cohen did, it’s potentially the same sort of thing.
Though not necessarily.
“Here, one of the questions would be, did Trump know about this and did he direct this?” Noble said. “If Michael Cohen gives gifts to Donald Trump and Donald Trump calls up and says, look the campaign is in a month and if this gets out, I’m going to lose, so if you want me to win you have to make this payment — that would be clear evidence of a campaign contribution.”
As Orin Kerr notes at Reason, though, Cohen’s statement doesn’t clearly state that he paid the money.
“All Cohen says is that he used his personal funds to ‘facilitate a payment of $130,000,'” Kerr writes. “To ‘facilitate’, the dictionary tells us, means to assist with or to make something easier. Given that, I would think that the most literal reading of Cohen’s statement is just that he used his own funds to arrange the payment.” The only parties that Cohen explicitly ruled out as sources of the funding were the Trump campaign and the Trump Organization.
Setting those denials aside, let’s consider five different possibilities for who might have paid Daniels, working from outside in: a business outside of the campaign, an individual outside of the campaign, someone working for the campaign, the campaign itself or the candidate.
If the money was in fact meant to aid the campaign, here are the implications if any of the above parties were the source of the money.
A business outside the campaign. If the source of the $130,000 was a business, Noble says, and the contribution was considered a campaign contribution, it would be illegal. Businesses can’t make payments of that size to a campaign.
An individual outside of the campaign. Let’s say that some random wealthy Trump supporter stumbled onto the Daniels story and decided to offer her payment to stay quiet. Interestingly, Noble said, this might not be a violation of campaign finance laws. Instead, it would function more as an independent expenditure on behalf of the Trump campaign.
But it’s essential that this person have no connection to the campaign.
Someone working for the campaign. It can be hard to determine who counts as an “agent” of a political campaign. Someone on payroll, certainly. Someone reimbursed for expenses, yes. But does Cohen count? He wasn’t paid by the campaign, though he regularly appeared on television on Trump’s behalf.
That said, in Cohen’s most infamous media appearance he clearly presented himself as working with the campaign and explaining staff changes the campaign was making.
If he’s an agent of the campaign, his paying $130,000 could be an illegal campaign contribution, subject to is-it-a-contribution debate outlined earlier in this article.
The campaign itself. The Trump campaign could have made this payment legally. It would simply have had to report it, which it didn’t. (That reporting in this case would have presumably been a payment to Essential Consultants LLC, the corporation Cohen created.) It would be spending $130,000 of money contributed by donors, which might carry some political risks.
The candidate. Unless the contributor was the candidate himself. Trump gave millions to his own campaign and could legally have given $130,000, which was then paid out to Daniels through the LLC.
But, again, it would have to be reported, which it wasn’t.
“In any of these cases,” Noble said, “the civil penalty would be, the campaign would have to report it and there would be a civil penalty for failure to report and/or an excessive contribution.” That includes Trump funding the payment himself.
So these are the questions that remain.
- What was the source of the $130,000?
- Did they have a history of making similar payments outside the context of the campaign?
- If so, was this payment nonetheless explicitly meant to affect the campaign?
Cohen’s statement doesn’t answer any of those questions — almost certainly intentionally.
Noble noted “how carefully worded the denial was, especially coming from a lawyer, being a lawyer.”
“It’s often is what is not said that is really key to this,” he said.