It was under oath, as opposed to Trump’s angry tweets in response, but the assertion still had gaps. Since the payment to adult-film actress Stormy Daniels first became public earlier this year, questions have arisen about the legality. As we learned more about that payment, made by Cohen, and about another payment from the publisher of the National Enquirer to a former Playboy model named Karen McDougal, the scope of possible violations expanded but certainty remained elusive. Cohen’s comments in August were the most direct implication of Trump on record.
But that was a week ago. Since, a string of developments: federal prosecutors joining Cohen’s assertion about Trump’s direction; the release of an agreement between American Media Inc. (the publisher of National Enquirer) and the government similarly concurring with Cohen’s assessment; and news reports about a meeting between AMI chief executive David Pecker, Trump and Cohen in which payments meant to keep information buried before the election were discussed.
On Friday morning, ABC News published a new interview with Cohen in which he made a further claim about Trump’s involvement.
"First of all, nothing at the Trump organization was ever done unless it was run through Mr. Trump,” Cohen told ABC's George Stephanopoulos. “He directed me, as I said in my allocution and I said as well in the plea, he directed me to make the payments, he directed me to become involved in these matters. Including the one with McDougal, which was really between him and David Pecker and then David Pecker's counsel. I just reviewed the documents . . . in order to protect him."
This is not a simple issue to parse. Given the significance of a president having possibly committed violations of federal law during his campaign, it's worth exploring the question in detail.
Were the payments illegal?
During the 2016 election cycle, Trump’s presidential campaign couldn’t accept a contribution of more than $2,700 from an individual and couldn’t take money from corporations at all. (The exception: Trump could lend himself as much as he wanted.) Expenses related to the campaign had to be paid from money that was collected for the campaign under those limits which, after all, is the heart of contribution limits: If you could take any money from anywhere or spend any money you wanted, there would be no point to setting limits in the first place. Those contributions and payments then have to be reported publicly.
If a campaign violates those rules, the punishment depends on a few circumstances. If a campaign knowingly and willfully accepts more than $25,000 illegally, the violation is a felony.
The argument made by federal prosecutors here is, in effect, that the campaign twice violated both the contribution and payment prohibitions by accepting more money than was allowed (and, in the case of AMI, from an illegal source: a company) and then not reporting the payments. As we reported in February, that hinges on two factors: that the payments were made in coordination with someone on the campaign and that the payments were related to the campaign.
Was Cohen an agent of the campaign?
It is perfectly legal for Person X to pay $100,000 to Person Y who would otherwise allege an affair with Candidate A — as long as Candidate A and his campaign aren't working with Person X on the payment. Such a payment would be an independent expenditure. (It's also, somewhat ironically, perfectly legal for Candidate A to pay Person Y himself, if the candidate uses legally collected campaign money and reports it.)
In this case, Cohen wasn't on the campaign's payroll, but he was still acting with the campaign's authority. That's never really been in doubt. Cohen appeared on television multiple times as a surrogate for the campaign over the course of 2016 and, as federal prosecutors noted in a court filing last week, had a campaign email address. He was also the candidate's personal attorney and, as a recording made public in July makes clear, discussed campaign issues with his client.
Were the payments campaign-related?
This has become one of the central points of contention as it relates to Trump. The president himself has several times in tweets tried to suggest that the payments were not related to the campaign but instead, as he put it this week, a “simple private transaction.”
Some legal experts agree that the payments shouldn’t be considered campaign expenses. Writing for the Wall Street Journal in April, former Federal Election Commission chairman Bradley Smith argued that including hush-money payments as campaign-related expenses was a slippery slope in which all sorts of things could be considered campaign-related and therefore necessarily limited or reportable. Smith noted that constraining the definition of what’s campaign related was intentional on the FEC’s part, to keep candidates from using campaign money as a personal slush fund.
Smith also argued that there were non-campaign-related reasons to want to make the Daniels and McDougal payments, including saving Trump and his family from the personal embarrassment of having the stories made public.
The White House has also pointed to an article written by the Heritage Foundation’s Hans von Spakovsky. Von Spakovsky similarly notes that there were non-campaign reasons to make the payment and cites the example of former North Carolina senator John Edwards, who was acquitted on charges that he had been similarly involved in hush-money payments to a woman with whom he’d had an extramarital affair.
(Ironically, von Spakovsky, who briefly and contentiously served on Trump’s ill-fated electoral fraud commission last year, argued in 2012 that Edwards was guilty of those allegations.)
“The law is murky about whether paying hush money to a mistress is a ‘campaign expense’ or a personal expense,” Smith wrote for The Post following Cohen’s guilty plea. “In such circumstances, we would not usually expect prosecutors to charge the individuals with a ‘knowing and willful’ violation, leading to criminal charges and possible jail time. A civil fine would be the normal response.”
Nonetheless, prosecutors moved forward with two charges against Cohen, one for soliciting an illegal contribution from a corporation (AMI) and making an excessive contribution (the $130,000 he paid to Daniels). He pleaded guilty, avoiding a trial where the theory of the prosecutors' case could be tested against Smith's objections.
But we also learned this week that AMI reached an agreement with the government under which it wouldn't face criminal repercussions for its involvement in the payments. AMI, presumably, could have gone to trial and similarly fought for its innocence. It chose not to.
In fact, both AMI and Cohen admitted that the payments were made specifically for the purposes of influencing the election. That they were is reinforced by the timing: The McDougal payment occurred in August 2016 and the Daniels payment only two weeks before Election Day.
Trump and Cohen were also recorded in early September 2016 talking about the McDougal payment during a conversation about the election. The two were trying to coordinate a reimbursement to Pecker and AMI for the money the company had spent, but Pecker called off that reimbursement — according to the Journal because his attorneys warned that accepting repayment heightened the company’s exposure to campaign finance violations.
Did Trump know that the payments were illegal?
In order for Trump to be culpable, he would need to have committed a “knowing and willful” violation of the law.
Lawrence Noble, former FEC general counsel, told The Washington Post last week that this didn’t mean that Trump had read and internalized the specific campaign finance statute. Instead, he would have needed to know that campaign contributions and expenditures are controlled and needed to be reported — which he obviously did.
Noble argued that the fact the payments were obscured through AMI and, in the Daniels case, a shell corporation increased the likelihood that those involved in the payments understood that the payments were illegal. (Trump and Cohen, in that recording released in July, discussed whether the repayment to AMI should be made in cash.)
In a tweet on Thursday, Trump implied that he was just following Cohen’s direction on the repayments, which Cohen rebuts in that ABC interview. In fact, notice Cohen’s language: “He directed me to make the payments; he directed me to become involved in these matters.” The argument — here not under oath — is that Trump was driving the payments.
It’s possible that Trump ordered Cohen to make and obscure the payments to protect his family from embarrassment. But, again, Cohen and AMI both stated under penalty of perjury that the payments were made to influence the campaign.
The agreement for AMI to aid the Trump campaign originated with a meeting in August 2015 attended by Pecker, Cohen and someone identified in court documents as a “member of the campaign.” There, Pecker offered to aid the campaign by buying and killing stories about untoward behavior by Trump — precisely what he did with McDougal. On Thursday, NBC News reported that the third attendee was Trump, confirming similar reporting from the Journal.
If Trump was in a meeting in August 2015 where Pecker agreed to kill stories to help the campaign, ordered Cohen to work with Pecker to buy and kill McDougal’s story in August 2016 and then talked with Cohen about how to buy that story back from AMI in September of that year, it strains credulity to think that Trump was unaware of the purpose of the payment.
Whether Trump knew it violated campaign law, though, may be harder to prove.
If illegal, how serious were the violations?
The Department of Justice’s Office of Legal Counsel issued an opinion in 2000 that a sitting president couldn’t be indicted. As our Deanna Paul noted, that’s a more complicated issue than it might appear — and has no effect on Trump’s vulnerability once he leaves office.
The more immediate risk to Trump is political. If voters in 2020 think that Trump broke campaign finance laws to win election four years prior, it could affect his chances. If Republican support for Trump were to collapse as a result of those actions, it could make Trump more susceptible to being removed from office following an impeachment, an act that would require 20 Republican senators to turn on him.
Neither of those seems likely at this moment. But, then, a week ago, the case that Trump violated campaign finance laws also wasn’t nearly as robust as it is now.