This article has been updated.
Trump’s former personal attorney Michael Cohen was sentenced to three years in prison on Wednesday, stemming primarily from guilty pleas he offered in August on a spate of fraud and campaign finance violations. The latter charges were related to two payments that Cohen facilitated in August 2016 and October 2016 meant, he said, to prevent two women who alleged extramarital relationships with Trump from telling their stories before Election Day.
In one case, Cohen worked with American Media Inc., the parent company of the National Enquirer, to have former Playboy model Karen McDougal receive $150,000 to lock down the rights to her story of an alleged affair with Trump. In the other, Cohen himself directly paid $130,000 to adult film actress Stormy Daniels for her to similarly remain silent.
When he pleaded guilty in August, Cohen surprised the courtroom by announcing that he’d undertaken the payments at Trump’s direction. Those payments are illegal, campaign finance experts tell The Washington Post, because, among other things, they are unreported campaign expenses paid with unregulated contributions.
Trump’s role in the payments was reinforced in a court filing published Friday, in which government attorneys asked that Cohen receive a stiff sentence.
"In particular, and as Cohen himself has now admitted, with respect to both payments,” that filing read, “he acted in coordination with and at the direction of Individual-1" — that is, Trump. With that sentence, the U.S. attorneys implicated Trump in the illegal payments directly.
Trump, for his part, has claimed that the payments weren’t meant to influence the campaign. The payment was “a simple private transaction,” he argued, without specifying which was being referred to. This is a straightforward strategy: Were the payments in fact not related to the campaign, there’s no campaign finance violation. That distinction was how former North Carolina senator John Edwards escaped conviction on similar charges in 2012.
Which brings us to Wednesday's news release.
Technically, one of the charges to which Cohen admitted guilt in August was soliciting an illegal corporate contribution: Working with AMI to make that payment to McDougal. Corporations can’t legally try to influence elections by working in concert with campaigns to pay people off with corporate money. If they could, there would be no reason to have campaign finance rules, because most expenses could just be covered by corporate bank accounts.
So why didn’t AMI face criminal charges? We knew that the company’s chief executive, David Pecker, was working with investigators in exchange for immunity. We learned Wednesday that the company had received a form of immunity, too, as part of a “non-prosecution agreement” with government lawyers.
“As a part of the agreement, AMI admitted that it made the $150,000 payment in concert with a candidate’s presidential campaign, and to ensure that the woman did not publicize damaging allegations about the candidate before the 2016 presidential election,” the news release read. “AMI further admitted that its principal purpose in making the payment was to suppress the woman’s story so as to prevent it from influencing the election.”
An agreement between prosecutors and AMI signed in September outlined precisely how that worked: AMI contacted Cohen about McDougal and subsequently agreed to make a payment to buy her story.
“At no time during the negotiation for or acquisition of the model’s story did AMI intend to publish the story or disseminate information about it publicly,” the agreement reads.
The point here should be obvious: Both Cohen and AMI are now on-record saying that the intent of the payment to McDougal was to influence the election. And we know that Trump was aware of this payment before the election, because a recording of Cohen and Trump discussing it was leaked to the media in July.
This separates the Trump case from Edwards, as former FEC general counsel Lawrence Noble noted in a phone conversation on Friday. Here, both Cohen and AMI rebut the idea that the payments weren’t related to the election.
That said, there’s no direct public proof that Trump knew the purpose of the payment was for the election. The key word there is “public.” What the new revelation in that news release does, though, is serve as a reminder that prosecutors have a lot of other evidence collected from AMI, Pecker and Cohen which may serve to strengthen the argument that Trump was well aware of why AMI was making that payment.
There is a tantalizing hint in the agreement between AMI and prosecutors that’s worth highlighting. A delineation of the facts of the case includes this paragraph:
“In or about August 2015, [Pecker] met with Michael Cohen, an attorney for a presidential candidate, and at least one other member of the campaign. At the meeting, Pecker offered to help deal with negative stories about that presidential candidate’s relationships with women by, among other things, assisting the campaign in identifying such stories so they could be purchased and their publication avoided. Pecker agreed to keep Cohen apprised of any such negative stories.”
This is precisely what happened. If Trump was aware of the existing agreement -- or if Trump was that unidentified other member of the campaign -- his assertion that the McDougal payment was unrelated to the campaign is severely undercut.
Update: On Thursday afternoon, NBC News reported that the unnamed official in the August 2015 meeting was Trump himself, confirming a November report from the Wall Street Journal. If so, the question of Trump’s awareness of the intent behind the payment is all but settled.
At the sentencing hearing for Cohen on Wednesday, the government made something else very clear: It doesn’t intend to let campaign finance charges slide.
“In particular, Mr. Cohen’s conduct related to the election is serious,” Assistant U.S. Attorney Nicolas Roos said to the sentencing judge, “because of the tremendous societal cost associated with the campaign finance crimes and the lies to Congress. Mr. Cohen committed these deceptive acts to protect the political campaign from allegations of impropriety, and, by his own admission, he committed the campaign finance crimes for the purpose of influencing the election.”
“[T]ogether these crimes implicate core defining parts of our democracy: Government funded by the people, free and transparent elections,” he added. “And in committing these crimes, Mr. Cohen has eroded faith in the electoral process and compromised the rule of law. And so just as he asks for leniency because of what he claims he’s done for the republic, the same can be true in the way in which he’s undermined it.”
Roos continued by echoing a point raised in last Friday’s filing: The need for deterrent punishment.
“Effective deterrence of such offenses requires incarceratory sentences that signal to other individuals who may contemplate conduct similar to Cohen’s that violations of campaign finance laws will not be tolerated,” the filing read.
Given the high-profile nature of Cohen’s violations, prosecutors argued, the need for punishment to set an example was higher. One can assume that a similar argument would apply to violations committed by the president of the United States.
Again, no charges have been filed against Trump related to the payments, nor are they likely to over the short term given the Justice Department’s public opinion on indicting sitting presidents. But the government on Wednesday made two things clear: Prosecuting such crimes is and should be a priority, and Trump’s tweeted claim about his innocence holds less water than we might have thought.