President Trump’s day began Monday, as many of his days do, with watching Fox News. A guest on “Fox and Friends First” — the version of the show that airs in the pre-dawn hours — argued that former FBI director James B. Comey’s Friday testimony left Democrats without a smoking gun on the question of coordination between Russia and the Trump campaign in 2016. (It wasn’t intended to; it had been demanded by congressional Republicans.) Trump seized on the comment in a pair of typo-marred tweets.
“Democrats can’t find a Smocking Gun tying the Trump campaign to Russia after James B. Comey’s testimony,” he wrote on Twitter. “...So now the Dems go to a simple private transaction, wrongly call it a campaign contribution, which it was not (but even if it was, it is only a CIVIL CASE, like Obama’s — but it was done correctly by a lawyer and there would not even be a fine. Lawyer’s liability if he made a mistake, not me). [Trump’s former personal attorney Michael] Cohen just trying to get his sentence reduced.”
There’s a lot in there, but the main message is worth picking out: Trump is actively trying to rebut questions about possible campaign finance violations in which he has been implicated. We’ve known since Cohen’s initial guilty plea in August that Trump was tied to the illegal payments, but that idea was bolstered Friday with the government’s release of a document describing its conversations with Cohen as part of his deal to cooperate with investigations.
At issue are two payments made to women who allege extramarital relationships with Trump before his political career.
The first is Karen McDougal, a Playboy model who was given $150,000 and promised future media opportunities in August 2016 by American Media, Inc., publishers of the National Enquirer, to buy exclusive rights to her story. AMI never ran the story.
The second is adult film actress Stormy Daniels, who was paid $130,000 shortly before the election by Cohen himself. That money came from a home loan that Cohen had fraudulently obtained (according to his August plea agreement), which Cohen then transferred to Daniels’s attorney.
For these payments to have violated campaign finance laws, they needed to have been related to the campaign. If they were, that they were made using non-regulated money (meaning money that wasn’t donated to the campaign) and that they weren’t reported by the campaign as expenditures are violations of federal law.
Trump’s argument, in short, is that these payments weren’t related to the campaign. Instead, they were “a simple private transaction.” When we first spoke with former FEC general counsel Lawrence Noble about the legal implications of the Daniels payment in February, he pointed out that, if Trump regularly had Cohen pay women to keep their silence, it would bolster (but not disprove) the argument that this payment wasn’t related to Trump’s candidacy.
Since then, though, we’ve learned a lot of information that makes the possibility that the payments had nothing to do with the campaign seem highly unlikely.
In his agreement in August, Cohen testified under oath that the payments he made were undertaken “in coordination with, and at the direction of” Trump, with the goal of protecting “information that would be harmful to the candidate and to the campaign to keep the individual from disclosing the information.” Of course, this is the same Cohen who, late last month, admitted to lying under oath to Congress. (Hence Trump’s “just trying to get his sentence reduced.”)
The Friday filing from the U.S. Attorney for the Southern District of New York, though, adopts similar language: “[A]s Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1” — that is, Trump. That’s an assertion not from Cohen, but is using Cohen to bolster a statement from the U.S. attorneys.
Why might they be confident that the payments were both campaign related and that Trump was aware they were? They offer some insights in the filing itself.
"Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election,” the filing reads, going on to note that, "[a]fter making the payment to [Daniels], and after [Trump] was elected President, Cohen privately bragged to friends and reporters, including in recorded conversations, that he had made the payment to spare [Trump] from damaging press and embarrassment.” Cohen admitted in August to coordinating the payment with AMI and the government notes that he took credit for the payment in a secretly recorded conversation with Trump.
That conversation appears to be the one from September 2016 — between the McDougal and Daniels payments — first obtained by CNN in July. That conversation is entirely predicated on the campaign, beginning with whether a key campaign surrogate could still be used after a controversy and continuing to Cohen assuring Trump that documents from Trump’s first divorce would remain sealed well past Election Day. The next topic of conversation is how to buy McDougal’s story from AMI.
That purchase never happened, because AMI’s attorneys reportedly informed chief executive David Pecker that being repaid (in essence) would undermine his own arguments that the payment wasn’t campaign-related.
Pecker had reached out to Cohen and Trump repeatedly, including in August 2015, offering to help bury stories that could harm the campaign effort. How do we know that? From a filing related to Cohen’s initial guilty plea. At that time, we learned that Pecker himself had been granted immunity from prosecution for providing information to investigators. In other words, it’s not just Cohen’s word that bolsters assertions about Trump’s role: Pecker’s may, too.
As may that of Trump Organization chief financial officer Allen Weisselberg, who’s also been granted immunity. That’s important in the context of McDougal because of a comment Cohen made in that recording of his conversation with Trump: Cohen said he’d spoken to Weisselberg about the reimbursement payment. Weisselberg also set up the retainer agreement for Cohen in 2017 that served to reimburse the attorney for his payment to Daniels.
Trump’s defense also depends on our ignoring a bit of circumstantial evidence: timing. The McDougal payment was made in August 2016, shortly after Trump received his party’s nomination. Cohen and Trump discussed buying McDougal’s story in September because they were worried that it would remain private in the event that Pecker “gets hit by a truck,” in Trump’s phrasing.
The Daniels payment arose in early October (after AMI connected her team with Cohen) but wasn’t finalized until Oct. 26, 2016 when Daniels’s attorney threatened to take the story to the media if she weren’t paid. So Cohen, who’d apparently been trying to get the Trump Organization to make the payment, made it himself. Two stories of affairs a decade before the campaign were settled in the final weeks of Trump’s candidacy.
That the payments were obscured is identified in Friday's filing as evidence of culpability.
"He arranged one of the payments through a media company and disguised it as a services contract, and executed the second non-disclosure agreement with aliases and routed the six-figure payment through a shell corporation,” the document reads. “After the election, he arranged for his own reimbursement via fraudulent invoices for non-existent legal services ostensibly performed pursuant to a non-existent 'retainer' agreement. And even when public reports of the payments began to surface, Cohen told shifting and misleading stories about the nature of the payment, his coordination with the candidate, and the fact that he was reimbursed."
Trump was both aware that the first payment had been arranged, and he, too, worked to obscure the nature of the deal after the campaign was over.
Noble, the former FEC lawyer, told The Post on Friday that that effort to hide the payments bolstered the idea that it was understood to be an effort to protect Trump’s candidacy. He walked through the litany of possible violations, including both civil and criminal charges. (As for the comparison to Barack Obama, we addressed that in August.)
“What’s unusual is you have the person who was the key operator in this” — Cohen — “saying he did it for the purpose of influencing the election, and that the candidate knew about it,” Noble said in a phone conversation.
Trump's defense hinges on the idea that he didn't consider the payments to be related to the campaign. This is something that, were he to be indicted and tried, would be up to a jury to determine (as election law expert Rick Hasen pointed out on Friday).
Here again, there is not a public smoking gun — however you choose to spell it. Compared with what was understood when the story first broke, though, the trend of how the story is unfolding doesn’t seem to be in Trump’s favor.