We got our first word Thursday when it comes to Trump’s legal liability stemming from these cases, and he got a pass.
The Federal Election Commission ruled that it will not move forward with an investigation into Trump’s role in the illegal 2016 hush-money payment to porn star Stormy Daniels, who claimed an affair with Trump, in the closing weeks of the election.
The decision is both unsurprising and rather inexplicable.
It’s unsurprising because this is par for the course for the FEC. The bipartisan agency in charge of enforcing campaign finance law has been mired in a state of gridlock for many years, with its key enforcement decisions regularly breaking down along party lines and sometimes without enough members to even function. The decision that was disclosed Thursday pitted two Democrats in favor of moving forward against two Republicans voting against it.
But while this was probably to be expected, just consider what it means.
The underlying issue isn’t just some speculation about something that might have happened; it involves a proven crime tied to Trump — both by the criminal and Trump’s own Justice Department.
Former Trump lawyer Michael Cohen pleaded guilty to campaign finance violations in criminal court, registering the hush-money payments made to Daniels and former Playboy model Karen McDougal, who also alleged an affair with Trump, as illegal.
The key issues when it came to Trump’s culpability were whether he was involved in the payments and whether they were intended to influence the election being held shortly thereafter. Cohen said publicly in 2018 that both things were true and later testified under oath to the same effect.
“Of course,” Cohen said when asked whether Trump knew that the payments were wrong. He added that the purpose was to “help [Trump] and his campaign.”
“He was very concerned about how this would affect the election,” Cohen said.
Cohen’s history, of course, loomed over those claims — even ones made under oath. He’s not the best witness, and he arguably had an ax to grind against Trump. But he wasn’t the only one to implicate Trump in the crime; so too did Trump’s own Justice Department.
In a document filed by the U.S. attorney for the Southern District of New York later in 2018, SDNY said flatly that Cohen acted in coordination with Trump.
“Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments,” the document said. “In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1.” (This was a clear reference to Trump, which the document later specifies refers to someone who was later elected president.)
Importantly, the document noted that this was Cohen’s claim, but also implicated Trump in its own words, suggesting that this was a conclusion it had reached independently. And it cited other contemporary evidence beyond simply Cohen’s say-so.
So that’s Trump’s own Justice Department saying he played a role in a crime. Whether his actions themselves were criminal or not was a valid question — and one that would apparently have to wait until Trump was out of office, given Justice Department policy against charging sitting presidents, which also provided him cover in the Russia probe — but there would have seemed to be plenty to dig through after he was out of office.
But the FEC, which has civil rather than criminal enforcement responsibilities, will not press forward. In defending their votes, the two Republican appointees, Sean Cooksey and Trey Trainor, cited a few things: the statute of limitations running out in the coming months, the idea that it would be a poor use of their resources and the other investigations into the matter.
“The Commission regularly dismisses matters where other government agencies have already adequately enforced and vindicated the Commission’s interests,” they said in a statement Thursday.
The thing is, though, that the Trump Justice Department declined to pursue the case further, according to a 2019 filing from a federal judge. One conclusion you could draw from that is that the evidence against Trump wasn’t sufficient, despite the SDNY’s conclusion that Trump was involved. But also remember that long-standing Justice Department policy: It could also have been because it didn’t think it could charge Trump even if it was handed a smoking gun.
Which would suggest that it’s thoroughly possible that questions about Trump’s culpability haven’t truly been addressed or that the law hadn’t already been “adequately enforced” by another government agency in his specific case.
Which, very notably, seems to have been the conclusion of the FEC’s own Office of General Counsel. In a report issued in December, it urged the commission to move forward, saying it had sufficient reason to believe that the Trump campaign violated the law by knowingly accepting excess contributions — the hush-money payments far exceeded the allowable amounts — and failing to disclose those contributions.
What’s more, it said pretty explicitly that Cohen’s guilty plea didn’t settle many of the issues involved.
“ … Cohen’s guilty plea clearly did not vindicate all of the Act’s discrete enforcement interests in this matter as it relates to this respondent,” it said. “Cohen pleaded guilty only to making an excessive contribution in connection with his role in making the Clifford payment, but was not criminally charged with willfully making a contribution in the name of another.”
Given its recent history and limited mandate, the FEC’s decision shouldn’t be seen as an indicator of Trump’s ongoing potential criminal liability in this or any other cases. But it does fill out a picture of a former president who has been very fortunate thus far to escape further scrutiny.