This article has been updated.
Let us dispatch quickly with a lot of truly remarkable context for President Trump’s Thursday morning tweets denying culpability for alleged campaign-finance law violations. So we’ll note only hastily how noteworthy it is that a sitting president has been implicated by his own Justice Department in the commission of multiple felonies. Quickly note how significant it is that those felonies relate to allegations from a Playboy model and an adult-film actress that the president engaged in extramarital affairs. Mention in passing that a person who served as the president’s personal attorney for nearly a decade, Michael Cohen, has been sentenced to three years in prison in part for violating campaign finance laws to keep those relationships from being discussed publicly before the election.
And, of course, dedicate only one line to the president’s striking demand that Americans ignore his demonstrably false claims about the payments — that he wasn’t aware of them, that he wasn’t involved — and instead accept this latest, complicated iteration as God’s-honest-truth.
Over the span of three tweets, this is the case that Trump presents.
“I never directed Michael Cohen to break the law. He was a lawyer and he is supposed to know the law. It is called ‘advice of counsel,’ and a lawyer has great liability if a mistake is made. That is why they get paid. Despite that many campaign finance lawyers have strongly stated that I did nothing wrong with respect to campaign finance laws, if they even apply, because this was not campaign finance. Cohen was guilty on many charges unrelated to me, but he plead to two campaign charges which were not criminal and of which he probably was not guilty even on a civil basis. Those charges were just agreed to by him in order to embarrass the president and get a much reduced prison sentence, which he did-including the fact that his family was temporarily let off the hook. As a lawyer, Michael has great liability to me!”
Let's separate out the latest assertions, theorize why Trump's making these revised claims and evaluate their validity. But let's take them out of order.
“Despite that many campaign finance lawyers have strongly stated that I did nothing wrong with respect to campaign finance laws, if they even apply, because this was not campaign finance. Cohen was guilty on many charges unrelated to me, but he plead to two campaign charges which were not criminal and of which he probably was not guilty even on a civil basis.”
This is the heart of Trump's defense.
The hush-money payments were violations of the law because campaign spending is regulated. You can only accept money under certain conditions, you can only spend that money under specific conditions, and that spending needs to be reported. In this case, the payments to Karen McDougal (made on Trump’s behalf by American Media Inc., as the company admitted in an agreement with the government released on Wednesday) and Stormy Daniels (made by Cohen) were not made with legally collected money and not reported as campaign spending. In addition, the spending by AMI was itself illegal, since corporations can’t coordinate with campaigns on political spending. The two campaign finance charges to which Cohen pleaded guilty related to his payment to Daniels and his work with AMI to make the McDougal payment.
You’ve probably already spotted the linchpin of this argument: If the payments had nothing to do with the campaign — if Trump was just covering up affairs — there’s no violation because there’s no campaign spending. This is Trump’s central defense.
Unfortunately for Trump, there are several reasons to think that the campaign was, in fact, the impetus for the payments.
For example, they happened in August and October 2016, years after the relationships. Why pay them off then, if not because of the campaign?
More importantly, both Cohen and AMI have stated under penalty of perjury that the payments were meant to influence the election. AMI told the government that in August 2015 — a year before the McDougal payment — its chief executive, David Pecker, had met with Cohen and an unnamed campaign official to offer to help cover up any negative stories that might emerge. It then did so, paying McDougal $150,000 “to suppress the model’s story so as to prevent it from influencing the election,” as the agreement with the government reads. That, by itself, is illegal, but AMI won’t be charged under its agreement with the government.
AMI had expected to be reimbursed by Trump but ended up canceling that plan once its lawyers explained how that reimbursement would undermine any argument about the legality of its payment. But we know that Cohen and Trump planned to reimburse the company for the payment because we have a recording of the two discussing it. That recording, released in July, was part of a conversation that was entirely about the campaign.
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.
“I never directed Michael Cohen to break the law. He was a lawyer and he is supposed to know the law. It is called ‘advice of counsel,’ and a lawyer has great liability if a mistake is made. That is why they get paid.”
For someone to be charged with criminal violations of campaign finance law, they need to have violated the laws knowingly and willfully. In other words, they need to have known that what they were doing was illegal and to have done it anyway.
In the sentences above, Trump seems to be offering as a defense his own unfamiliarity with the law, pinning on Cohen any mistakes related to the payment.
Lawrence Noble, former general counsel for the Federal Election Commission, made an important point to The Post in a phone call last week. That Cohen (with Trump's knowledge) made the payment to McDougal indirectly and that he paid Daniels through a shell company reinforces the idea that it was understood that they were doing something untoward. The payments could have been made with campaign money — even money that Trump contributed — and reported as expenses without any law being broken. But that's not how the payments were made, suggesting an awareness that it was important to keep the payments out of the public eye. Trump would likely argue that this was to keep the stories private, but Noble points out that it also indicates an awareness that the payments needed to be kept private.
Asked specifically about the “knowing and willful” stipulation, Noble noted that this was a lower bar than it might seem. For Trump (or anyone) to have committed a violation, they would only have needed to know in general terms that campaign spending was controlled and that spending needed to be reported, which he clearly did know. Being aware that these payments were happening meets that standard, in Noble’s estimation.
At this point, we’ll note a wild card: The government has a lot of evidence that isn’t public. For example, in that recorded conversation about the McDougal payment, Cohen mentions having talked to Trump Organization CFO Allen Weisselberg, who could likely shed some light on the context of the payment — and Weisselberg is cooperating with investigators.
Trump claims on Twitter that he didn’t direct Cohen to violate the law. Under penalty of perjury, Cohen asserted that Trump had directed him to violate the law. In a court filing on Friday, the government asserted that Cohen “acted in coordination with and at the direction of Individual-1” — that is, Trump.
“Those charges were just agreed to by him in order to embarrass the president and get a much reduced prison sentence, which he did-including the fact that his family was temporarily let off the hook. As a lawyer, Michael has great liability to me!”
There's a simple rebuttal here. If Cohen is copping to charges to lessen his sentence and spare his family, why did AMI similarly admit to guilt?
AMI, one imagines, has much more money to spend on attorneys. If it truly believed that it hadn’t engaged in illegal activity, why not fight the allegation? Why did the company and its chief executive Pecker agree to cooperate? Why did it implicate Trump?
There is now and has always been a simple explanation to all of this: Trump and Cohen worked together on the payments to McDougal and Daniels to keep them quiet before the campaign. If that’s what happened, it’s clear why it isn’t the story that Trump’s presenting publicly. Instead we’re left with increasingly convoluted explanations that, time after time, are shown to be false.