Cohen was sentenced in December 2018 and reported to prison in Upstate New York in May 2019, about three months after William P. Barr began his tenure as President Trump’s second attorney general. According to a report from the New York Times published Thursday evening, Barr spent some portion of his first few months in that position focused on how Cohen’s case was handled.
Which portion? You might be forgiven for assuming it was the bit about Cohen lying to Congress, given that the lies dealt with his stewardship of a potential real estate deal the Trump Organization was seeking in Moscow. Not to mention that Barr has gone to bat over a similar issue. Despite Trump ally and former national security adviser Michael Flynn having pleaded guilty to charges of lying to investigators, the Justice Department has moved to drop the charges.
But Cohen is no Flynn, having turned on the president and offered testimony to investigators and to Congress about Trump’s behavior during the campaign. So, Barr’s reported focus with the Cohen convictions wasn’t on helping Trump’s former attorney escape punishment. It was, instead, focused on aiding Trump’s exposure to legal risk.
It’s those two campaign finance charges that are problematic for Trump.
You’ll remember that, in the weeks before the 2016 election, Cohen worked to arrange large payments to two women who alleged having had sexual relationships with Trump in the past. One, Karen McDougal, received a large payment from American Media Inc., the parent company of the National Enquirer. The other, adult-film actress Stormy Daniels, received a payment from Cohen himself, drawn from the same line of credit that he obtained by lying to that bank.
There’s a lot of evidence that the reason those payments were made — McDougal’s in August and Daniels’s only a few weeks before the election — was to protect Trump politically. This is an important point, so we’ll quickly review what’s known about each incident.
The payment to McDougal through AMI followed a reported handshake agreement between the company’s chief executive, David Pecker, and Trump that it would buy and bury stories unflattering to Trump. When McDougal’s story came to Pecker’s attention, he contacted Cohen, who told Trump. After Pecker and Trump spoke, AMI ultimately agreed to pay McDougal for the rights to any story similar to what she alleged about Trump. Both Cohen and the company later admitted that this was done with Trump’s direction and “to prevent it from influencing the election” — as a 2018 Justice Department news release described AMI’s admission.
At one point, Cohen leaked a recording of his discussing the payment with Trump. The original agreement had been that Trump would repay AMI, but Pecker was reportedly later advised against accepting repayment to limit his own exposure to campaign finance violations. Trump wanted to buy the rights to McDougal’s story in case “David gets hit by a truck” — meaning in case Pecker were out of the picture and AMI decided to publish her story after all. It’s Trump, in his own words, acknowledging the arrangement in broad strokes.
The Daniels agreement is neater. Cohen worked with her attorney — the same attorney who had finalized the McDougal deal — and agreed to a payment after consulting with Trump. (The then-candidate reportedly told Cohen to “get it done.”) After Cohen failed to actually pay the money, Daniels threatened to go public with her story. Cohen transferred the payment on Oct. 26, 2016, less than two weeks before the election. In court, Cohen testified that this payment was made at Trump’s direction.
For those payments to have violated the law, they must have met the following criteria, as Lawrence Noble, former general counsel to the Federal Election Commission, explained to The Washington Post in 2018:
- That money has to have been paid as a function of the campaign.
- That it exceeded contribution limits of $2,700.
- That it came from a prohibited source and/or wasn’t legally reported.
- And that the person violating the law knew he or she was doing so.
This all seems fairly abstract until you remember the rationale underpinning the laws. Without limiting how much a campaign can direct someone to spend, there’s no point in having contribution limits. Trump could raise funds in $100 increments — and then insist that Pepsi buy $6 billion in ads touting his trade agenda or whatever. The rules exist to limit the influence of money in elections and to ensure that the money that is spent is spent in a transparent way. That’s what Trump and Cohen didn’t do.
Cohen pleaded guilty to two charges related to the aforementioned payments: willfully causing an unlawful corporate contribution and making an excessive campaign contribution. The payment to McDougal, which he arranged, was corporate money, well in excess of $2,700 and not reported as a campaign contribution despite having been made in coordination with the candidate and an agent of his campaign. The payment to Daniels wasn’t reported as a contribution by Cohen and also exceeded legal limits.
Noble pointed out at the time that Trump’s interest in maintaining distance from both payments (having AMI pay McDougal and only reimbursing Cohen after the fact) suggests an understanding by Trump that the behavior was illegal. In other words, there’s plenty of evidence at hand that Trump himself is culpable of campaign finance violations.
According to the Times report, the attorney general contacted the Southern District of New York, which obtained Cohen’s guilty pleas, soon after beginning in his new role. Barr “spent weeks in the spring of 2019 questioning the prosecutors over their decision to charge Mr. Cohen with violating campaign finance laws.” At one point, he “instructed Justice Department officials in Washington to draft a memo outlining legal arguments that could have raised questions about Mr. Cohen’s conviction and undercut similar prosecutions in the future.”
There are no more similar prosecutions, of course, than potentially prosecuting the candidate who knowingly participated in both payments. The statute of limitations for the violations expires after five years: in August and October of 2021.
“I think SDNY had a strong case for the campaign finance violations against Cohen and to which he pleaded guilty,” Noble told The Post in an email Friday. “He admitted that he arranged payments to prevent two woman from going public with their allegations of affairs with Trump for the express purpose of preventing those stories from damaging Trump’s campaign. He also said he did it with the approval of the campaign.”
The accrued evidence, Noble said, formed “a solid basis for the charges that [Cohen] made an excessive campaign contribution and arranged an illegal corporate contribution to the campaign.”
Cohen isn’t the only high-profile person to be prosecuted for the same sort of violation. The government also charged in 2011 former senator John Edwards (D-N.C.) with campaign finance violations. Edwards was acquitted, but Noble sees the facts in this instance being “much clearer.”
It’s important to note that, had Barr successfully shifted the Justice Department’s position on campaign finance, the effects wouldn’t simply reduce Trump’s possible exposure to what he did in 2016. If the department’s formal position was to be hands-off under similar circumstances, it would allow Trump (and other candidates) to deploy similar tactics in 2020 with fewer or no repercussions. It would weaken campaign finance rules that are already teetering.
What the Times says Barr tried to do, in other words, was to specifically reduce Trump’s existing and future exposure to federal criminal charges. To figure out how to undercut the Cohen prosecution on campaign finance violations in a way that would necessarily make it easier for Trump to avoid similar prosecution should he leave office next year.
The Justice Department’s interventions under Barr on behalf of other Trump allies have been obvious. But this report about revisiting this particular facet of what Cohen did is something else entirely.