“Michael Cohen plead [sic] guilty to two counts of campaign finance violations that are not a crime. President Obama had a big campaign finance violation and it was easily settled!”
— President Trump, in a tweet, Aug. 22, 2018
“Michael Cohen pled guilty to something that isn’t even a crime.”
— Trump, in a Fox News interview, Dec. 13, 2018
“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 [sic] 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.”
Trump says it wasn’t a crime when his fixer arranged hush-money payments for two women during the 2016 presidential campaign. But prosecutors charged crimes, Michael Cohen pleaded guilty to crimes, and a judge sentenced him to three years in prison. So what in the world is Trump saying?
Cohen also pleaded guilty to tax evasion and making false statements to Congress and financial institutions. The hush-money charges involve Trump directly, though, and the president says they’re way overblown and were tacked on to embarrass him.
Trump says he never ordered Cohen, his former personal attorney, to commit crimes. We’re fact-checking Trump’s separate claim that the hush-money payments weren’t even crimes to begin with. Trump also suggests he’s being unfairly singled out, noting that President Barack Obama’s campaign only paid a fine for misreporting contributions in 2008 and that members of Congress for years had a special fund to settle employment claims, including sexual harassment cases.
All of this spin is worth unpacking.
The U.S. Attorney’s Office for the Southern District of New York said the hush-money payments were illegal campaign contributions that ended up depriving voters of information about Stormy Daniels, Karen McDougal and their alleged affairs with Trump. Cohen paid $130,000 to Daniels in October 2016 and got American Media, publisher of the National Enquirer, to purchase the rights to McDougal’s story in August 2016. AMI paid McDougal $150,000 and promised to give her regular media exposure, but her story was never published.
The acting U.S. attorney on the case, Robert Khuzami, said Cohen hid this information because he knew it would have influenced the 2016 election. The maximum an individual may contribute to a candidate is $2,700 under federal law. The hush-money payments Cohen arranged were effectively campaign contributions because they influenced the election in Trump’s favor, but they went over the $2,700 limit, prosecutors said.
“While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows,” federal prosecutors wrote in a December brief for Cohen’s sentencing. “He did so by orchestrating secret and illegal payments to silence two women who otherwise would have made public their alleged extramarital affairs with Individual-1 [Trump]. In the process, Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election. … To promote transparency and prevent wealthy individuals like Cohen from circumventing these limits, Congress prohibited individuals from making expenditures on behalf of and coordinated with candidates.”
Cohen arranged the payments to Daniels and McDougal “in coordination with and at the direction of” Trump, prosecutors said in the sentencing brief. However, they did not charge Trump, and under Justice Department policy, it’s not possible to indict a sitting president.
Some conservatives argue that it was a big stretch for federal prosecutors in Manhattan to turn the hush-money payments into criminal charges for Cohen. Here’s Bradley A. Smith, a former Republican chairman of the Federal Election Commission, writing in the National Review:
The U.S. Attorney is placing all his chips on the language “for the purpose of influencing an election.” Intuitively, however, we all know that such language cannot be read literally — if it were, virtually every political candidate of the past 45 years has been in near-constant violation. The candidate who thinks “I need to brush my teeth, shower, and put on a nice suit today in order to campaign effectively” is surely not required to report as campaign expenditures his purchases of toothpaste, soap, and clothing. When he eats his Wheaties — breakfast of champions, and surely one cannot campaign on an empty stomach — his cereal and milk are not campaign expenses. When he drives to his office to start making phone calls to supporters, his gas is not a campaign expense.
Another Republican former FEC commissioner, Hans von Spakovsky, wrote that these hush-money payments shouldn’t count as campaign funding. Regardless of his presidential bid, Trump was such a celebrity that he would have had to pay off alleged mistresses anyway, he wrote, and the law doesn’t restrict expenses that arise “irrespective” of a candidate’s campaign. “If Khuzami’s legal theory is correct — that any payments made to settle such a claim are campaign-related expenditures because they are intended to protect the reputation of a candidate and thus influence the election — a lot of members of Congress are in potential trouble,” von Spakovsky wrote.
Trump seems to agree with these writers, but that doesn’t change the fact that Cohen was sentenced to prison for crimes including the hush-money payments. Cohen admitted in court that he wanted to influence the election by suppressing the women’s stories and that he broke the law to help Trump win.
Whether Trump faces a legal risk from the payments is another matter. As we’ve reported, the Justice Department says a sitting president can’t be indicted. Less clear is whether Trump could face charges after leaving office.
Cohen could be guilty at the same time that Trump is not guilty, “depending on intent,” said Solomon L. Wisenberg, a former federal prosecutor who led the grand jury questioning of President Bill Clinton in 1998.
John Edwards, the former Democratic senator and presidential candidate from North Carolina, went on trial over more than $1 million in hush-money payments to his mistress, Rielle Hunter. The jury acquitted him on one count and deadlocked on five others, and the case ended in a mistrial in 2012.
Justice Department prosecutors argued that the payments to Hunter from two Edwards donors were illegal campaign contributions meant to keep the affair hidden from voters in 2008. Edwards’s attorneys said the payments actually were meant to hide the affair from the senator’s wife. The New York Times reported that the Edwards case “shows the risk of charging a politician with campaign-finance crimes over hush-money payments to mistresses, in which it is unclear whether the transactions were about trying to win an election or trying to protect the candidate’s personal life.”
But there are some big differences setting apart the Edwards and Trump cases. Unlike Trump, Edwards admitted to the affair. His biggest donor, Bunny Mellon, didn’t know her money was going to Edwards’s mistress, according to a friend of Mellon who testified at trial. Cohen not only knew where the money was going, but he also admitted to the whole detailed scheme in court. Edwards never had to deal with this kind of nightmare scenario — seeing his lawyer flip and admit crimes to influence an election.
“John Edwards did have co-conspirators rolling on him. But the prosecution could not show that either Edwards, or anybody on his staff, solicited campaign contributions specifically for the purposes of paying off his mistress, Rielle Hunter,” according to an analysis on the differences between the Edwards and Trump cases on Above the Law, a website that deals with legal issues.
It’s not surprising to see Trump trying to minimize Cohen’s actions. The president also claims that Obama’s campaign-finance violations from 2008 were in the same league as the hush-money payments.
“You know, President Obama had a really big one from 10 times more money, much more money. And you know what? He paid a fine. I’m the only one that this happens to,” Trump said in the Dec. 13 interview on Fox News.
But, as our Post colleague Michelle Ye Hee Lee wrote:
In April 2012, the FEC released an audit of the [Obama] campaign that found that the committee did not disclose the identities of the 1,312 donors responsible for nearly $2 million in contributions in the final weeks of the campaign.
Those donations made up one-quarter of 1 percent of the $778 million raised for his White House bid. The infractions found in the audit were relatively minor considering the volume of contributions, campaign finance experts said at the time.
“Overall, this is a very clean audit report for the Obama campaign. The FEC spent two years picking over $750 million in contributions and expenses and found one violation,” former Republican FEC chairman Michael Toner told Reuters at the time.
In the Fox News interview, Trump added: “What about Congress? Where they had a slush fund and millions and millions of dollars is paid out each year. … Have they listed that on their campaign finance sheets? No.”
He was referring to the members of Congress who paid settlements for workplace violations, including sexual harassment cases, using a special account funded by taxpayers.
“Congressional employees have received small settlements, compared with the amounts some public figures pay out,” The Washington Post reported in 2017. “Between 1997 and 2014, the U.S. Treasury has paid $15.2 million in 235 awards and settlements for Capitol Hill workplace violations, according to the congressional Office of Compliance. The statistics do not break down the exact nature of the violations.”
The settlements came under heavy criticism. But this process in Congress was the law. Cohen’s hush-money payments were found to be against the law. Anyway, a week after Trump made these comments on Fox News, he signed an overhaul to this very law. It requires members of Congress to “reimburse the Treasury Department for settlements and awards resulting from harassment or retaliation they commit.”
We sought comment from the White House but did not receive a response before publication.
The Pinocchio Test
Cohen says he committed a crime, prosecutors say he committed a crime, a judge found that he committed a crime, and usually those are all the ingredients you need for a crime.
Trump says he never ordered Cohen to break the law and silence Daniels and McDougal. But when he says such payoffs are not criminal to begin with, his defense goes off the rails. Trump is presenting a legal theory as fact to minimize his fixer’s crimes. It’s a bizarre claim to make with Cohen heading to prison, and it merits Four Pinocchios.
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