Our most robust understanding of the interactions among Trump, Cohen and the National Enquirer’s parent company, American Media Inc., comes from the criminal information document submitted to the court when Cohen pleaded guilty to eight counts of campaign-finance and financial crimes in July. Filling in the blanks in that document reveals the broad strokes of what the Journal reported: an agreement between Trump’s team and the CEO of AMI to help shield Trump’s presidential campaign from scrutiny. Two separate points of outreach by Daniels and McDougal to AMI ended up in front of Cohen, and each woman received more than $100,000 to stay quiet about her alleged relationship with Trump.
Beyond some other specifics, things were murky. Determining the most important question — Did Trump violate campaign finance law with his involvement in the payments? — depended in part on details that were still missing from the story. Cohen implicated Trump while entering his guilty pleas, but there were still some shadows. The Journal report adds new details that make the case for Trump’s culpability even stronger.
That’s according to Lawrence Noble, former general counsel for the Federal Election Commission, who spoke with The Washington Post by phone and email on Friday. Proving a violation of campaign finance regulations in this situation would have had to include, in Noble’s words, the following evidence:
- That the money was paid to protect the campaign.
- That the money was in excess of campaign contribution limits of $2,700.
- That the money came from a prohibited source such as a corporation.
- And/or that the contribution was not properly reported.
- That the violation was knowing and willful.
To prove “knowing and willful,” Noble said, “they have to show Trump had knowledge of the scheme and knew, generally, that the conduct was unlawful.”
Let’s assess the new details included in this Journal report in that light. The report is sourced to dozens of people and various legal documents and probably includes information from three people who cooperated with federal investigators. Incidentally, these are AMI chief executive David Pecker, Trump Organization Chief Financial Officer Allen Weisselberg and Cohen.
Trump initiated the request for AMI and Pecker to help run interference. The Journal report alleges that Trump initiated the conversation with Pecker in August 2015 about how AMI could aid his campaign.
Trump and Pecker had been friends for a long time before that year, with AMI staffers telling the Associated Press in August that Pecker had been buying and killing (that is, not running) unfavorable stories about Trump for at least a decade. (The Journal story has this instruction going back to the 1990s.) HuffPost reported last month that AMI staffers were encouraged to gin up stories about Trump’s political opponents, and to play down or skip stories casting Trump in a negative light.
Before making the McDougal payment, Pecker spoke to an election-law expert. Pecker appears to have understood that by making payments to women during the campaign he ran the risk of violating federal campaign-finance law. As we first reported in July, you are not allowed to coordinate with a candidate to spend tens of thousands of dollars to aid the candidate’s campaign. If you *could*, there would be no point to campaign finance laws, because candidates could just instruct wealthy supporters to spend money wherever it was needed.
The McDougal deal, unlike the Daniels deal, included having McDougal appear on magazine covers and write for AMI publications. That, Pecker appears to have been told by his attorney, offered enough protection to the company for making the agreement.
But it may not have been. Cohen pleaded guilty to eight criminal counts in August. One derived from his role in helping AMI make the payment to McDougal.
Pecker balked at being reimbursed, because he didn’t want to violate election law. After an audio recording of Trump and Cohen discussing the McDougal deal became public, one of the many questions that were raised was why the pair planned to reimburse Pecker for his spending. The conversation between Trump and Cohen implied that they were concerned that AMI might run the McDougal story if Pecker had been hit by a truck — in Trump’s formulation — so buying the story and maintaining ownership of it in-house would offer some protection.
The plan had been to accept reimbursement from Trump for all but $25,000 of the payment, the value of McDougal's covers and columns. But Pecker, the Journal reports, was told by his attorney that a reimbursement would “undermine any argument that the McDougal payment was made for editorial and business reasons, rather than as an in-kind campaign contribution."
Daniels was paid by Cohen personally because Pecker passed and Trump stalled. Another question that emerged was why Cohen would dip into his own finances to pay off Daniels after an agreement was reached with her in October 2016.
The Journal reports that Pecker declined to get involved in that deal because “he didn’t want his company to pay a porn star.” That, it seems, was a step too far for the magazine that boosted Trump by accusing the father of Sen. Ted Cruz (R-Tex.) of having been linked to the John F. Kennedy assassination. AMI did connect Daniels’s attorney to Cohen, as the criminal information document makes clear.
Why didn’t Trump then pay Daniels himself? Cohen, working with Weisselberg, the Trump Organization CFO, tried to figure out a way to shield the payment from any connection to Trump. That effort delayed the payment, and with Daniels reportedly shopping her story around to another outlet, Cohen drew money from his home equity line of credit to make the payment. (That home equity line of credit, he admitted in August, was itself obtained fraudulently.)
The urgency of that payment was reinforced in a three-way call between Cohen, Pecker and Dylan Howard, an AMI executive based in New York, the Journal reports.
Trump himself was involved directly in each deal. Trump reportedly called Pecker after AMI tipped off Cohen about the McDougal story. Cohen came to Trump again in October 2016 when the Daniels story emerged, with Trump reportedly telling him to “get it done.”
All of these points, these new details, bolster the idea that Trump himself was involved in violating campaign finance law, according to Noble.
“For the candidate to be found liable for a violation, generally you have to show that the candidate was specifically involved in the violation and knew about the violation,” Noble said. “When you can show that the candidate knew about the violation or knew about the activity that led to the violation — and especially when you can show that they did it to avoid it looking like it was a violation — then I think you do have evidence that the candidate was involved and the candidate can be held liable.”
He pointed to the several of the examples above.
That Trump reportedly initiated the relationship with AMI predicated on the campaign: “He is a candidate. And if he is doing it for election-related purposes — and I think the evidence is very strong that he was, then he is personally liable for this,” Noble said.
That the payments to bury the stories happened at a distance from Trump, shielding him from a connection to them out of an apparent awareness of the need to keep them secret: “When somebody makes an effort to hide what they’re doing in a campaign context,” he said, “that is at least evidence that they knew it was illegal. ... The mere fact that you’re trying to hide the transactions suggests that you knew it was illegal.” In other words, this speaks to willfulness.
That Pecker decided not to accept the reimbursement from Trump because it would put AMI at risk: “My first reaction ... was, well, that’s proof that they knew it was a violation of the law,” Noble said. “That they knew they were paying to keep her quiet.” When the recording was first released, Noble told The Post that coordination between the campaign and AMI would undermine a defense of the expenditure as being business-related. The Journal report makes clear that it wasn’t.
"What this article does is fill in a lot of the lines alleging that Trump actually was specifically involved with these deals,” Noble said. “And if that is true, and if Pecker says that, then I think it is very hard for him to get out of an argument that it is campaign-related.” And, therefore, illegal.
The Journal included the thoughts of Rick Hasen, an election-law expert at the University of California at Irvine. According to the Journal, Hasen argued that Trump’s involvement in the payments wouldn’t necessarily implicate him.
In a private message with The Post over Twitter, Hasen reinforced the importance of proving that the payments were related to the campaign, a point he made to us back in March. But since then, an additional point suggested that the payments were related: the Cohen guilty plea. That, Hasen said, was “some evidence” that the payments were campaign-related.
The Journal report bolsters much of the rest of Noble’s five-part standard for demonstrating a violation.