Four days before the 2016 election, the Wall Street Journal published an article that fit neatly into the shocking-but-not-surprising spirit of the last month of the campaign.
The National Enquirer, it reported, had paid $150,000 to former Playboy playmate Karen McDougal in the months before the election for the rights to her story about an affair she had with Donald Trump. But the Enquirer never planned to run her story, the Journal alleged. David Pecker, the chief executive of American Media Inc. (the Enquirer’s parent company), simply wanted to lock up McDougal’s story so it wouldn’t emerge before voting was done.
Last Thursday night, McDougal presented that argument to the public directly. In an interview with CNN’s Anderson Cooper, she outlined how she came to believe that the story of her alleged relationship with Trump should be made public.
It began, she said, when she saw a friend mentioning the relationship on social media. Another friend encouraged her to get out in front of the story and connected her to attorney Keith Davidson, the attorney who would negotiate Stormy Daniels’s agreement with Trump in October 2016. Davidson brought the story to AMI, which decided to pass.
McDougal then took the story to ABC News, which was ready to run with it until she got cold feet. The effort stopped — until Trump won the nomination, at which point, McDougal says, AMI reached out once again.
“Why do you think it was after Donald Trump was the Republican nominee that they came back?” Cooper asked her.
“They wanted to squash the story,” she replied. Pecker, the chief executive of AMI, is an old friend of Trump’s.
AMI and McDougal reached an agreement in early August 2016, according to the New Yorker. The payment to McDougal included both money and the promise that she could write a series of columns on health and fitness for various AMI properties. In return, she wasn’t allowed to tell the story of her relationship with Trump. That was no problem, she told Cooper. AMI pitched it as being about ensuring that her reputation was preserved as an employee.
“It was more about the way it was presented,” she said. “It was more about protecting me. It was more about: We don’t want to tarnish your image. We want to keep your brand wholesome and whole.”
Those writing assignments never really materialized. “She has appeared on one cover and is in discussions about another,” Ronan Farrow reported for the New Yorker, “but in the past seventeen months the company has published only a fraction of the almost one hundred promised columns.”
When the details of Stormy Daniels’s agreement were reported, we explored how that agreement might toe the legal boundaries of campaign finance regulations. In that agreement, Trump’s personal attorney Michael Cohen admitted to paying the $130,000 that Daniels says was intended to keep her from sharing her story about Trump. In arranging that payment, he used his Trump Organization email account and, as revealed on “60 Minutes” on Sunday, received Daniels’s signed agreement at his office in Trump Tower.
If the Daniels payment was intended to prevent her from telling a story that would harm the campaign, we were told by the Campaign Legal Center’s Lawrence Noble, Cohen was, at best, making an illegal campaign contribution. That Cohen used assets from the Trump Organization (his email address; his office) to secure the deal was probably a violation of a prohibition against using corporate resources to make contributions to a candidate. This all hinges on whether the payment to Daniels was meant to affect the election, which, barring physical evidence or an admission, is trickier to prove than it may seem.
The McDougal question is different.
First, the agreement wasn’t directly with Trump but, instead, with AMI. In a phone call with The Washington Post, Noble explained that the publisher is covered under a media exemption that allows reporting and editorials to escape regulation as campaign activity.
“But the question has always existed about how far that exemption goes,” Noble said. A past ruling dealing with Reader’s Digest set a general boundary. The New York Times could write an editorial saying “Vote for Smith,” but it couldn’t buy a billboard with the same message.
The AMI situation isn’t that clear-cut. Was it a “normal media project”? Was this in the ordinary course of AMI’s business? Did AMI regularly make similar agreements with people that didn’t emerge right before key elections? Did Pecker regularly try to bury stories about Trump? If so, they’re probably in the clear.
With a possible exception.
“If they talked to Trump about it, or the campaign about it, and they gave her that contract for the purpose of keeping her quiet,” Noble said, “then it could very well be a campaign finance contribution. If they did it without discussing with anyone on the campaign and without any direction from the campaign, it would not be a campaign finance violation.”
According to McDougal, the Trump team was involved — in the form of Michael Cohen.
COOPER: I mean, you wouldn’t know this, but do you think Donald Trump would have been aware of this — of this deal? That they were doing him — that they were allegedly doing him this favor?
MCDOUGAL: I wouldn’t know, but based on what I’m learning as we’re all learning together as we read, and one of the big complaints with why I think my contract is illegal is because his attorney was talking to my attorney.
COOPER: Michael Cohen — you’re saying Donald Trump’s personal attorney, Michael Cohen, was talking to Keith Davidson, your attorney.
MCDOUGAL: Correct. Speaking with Keith without me even knowing, without my knowledge. I would assume that maybe he knew. I know his attorney did.
That, she said, was based on information from her attorneys.
It’s not necessary that Trump called Pecker and told him to pay McDougal for this to be a problem.
“The connection to the campaign is what would make it a contribution to the campaign,” Noble said. “If it’s told or if AMI called the campaign and said, ‘Look, do you want me to do this?’ and they said, ‘Sure, go ahead and do it,’ any sort of coordination like that — or if they discussed how to do it, that would be illegal.”
In this case, though, Cohen’s defense could be that he was acting independently of the campaign. Cohen was never paid by the campaign, giving him a way to argue that he was independent of the electoral effort. He was empowered to go on television and speak on its behalf, though, and clearly spoke with Trump regularly.
The law here is clear, but the facts of each case are murky. Was Cohen acting solely as Cohen when interacting with Daniels and (allegedly) McDougal’s attorney? Were these two payments meant to aid Trump’s election or were they simply coincidences? The answers to those questions seem pretty clear, but it’s hard to prove them, particularly given a notoriously apathetic regulating body in the FEC.
During the “60 Minutes” interview on Sunday, Anderson Cooper — again the interviewer — asked an expert whether Cohen’s possible legal violations here might give special counsel Robert S. Mueller III leverage over him. The answer to that is probably fairly simple: No. Cohen certainly knows that the FEC likely wouldn’t take any action and that, if it did, he would probably only be fined.
A guy that admits to ponying up $130,000 because of his affection for Trump probably wouldn’t blink at paying a fine to keep from implicating him before Mueller’s grand jury.