The Washington PostDemocracy Dies in Darkness

The belated GOP effort to defend Trump’s hush-money payment on the merits

Republicans decried a possible indictment of former president Donald Trump on March 19 and 20, at times relying on false theories to undercut the probe. (Video: JM Rieger/The Washington Post)
8 min

Should Donald Trump be indicted by a Manhattan grand jury this week, it may be on a felony charge of falsifying business records. Normally, such a charge is a misdemeanor — but if the falsification was in service of committing some other crime, it can be charged as a felony. In this case, it seems, the other crime at issue is the payment of $130,000 to adult-film actress Stormy Daniels in the waning days of the 2016 election campaign, money paid to prevent her from sharing allegations that she slept with Trump in 2006. He has denied the affair.

If this is the tack that Manhattan District Attorney Alvin Bragg (D) is taking, there are other uncertainties. The statute of limitations is five years, meaning that charges normally must have been filed by late 2021. But New York allows for the statute of limitations to be extended by another five years if the alleged criminal had not been residing in the state, which Trump obviously hadn’t been as president.

After days of attacking Bragg as a partisan actor seeking to undercut Trump by any means necessary, Trump and his allies are turning to the underlying allegations. How Bragg’s office would frame the hush-money payment is uncertain; initial reports indicated that the office was looking to allege that the falsification was in service of a state crime, while the payment is most obviously characterized as a federal violation of campaign finance law.

Either way, criminality depends on whether the payment was meant to influence the election. Erode that idea — as Trump and others have been attempting in recent days — and everything resting on that foundation topples. The problem for Trump? This particular foundation has been tested before and proven sturdy.

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It’s useful to review what happened.

In August 2015, David Pecker, chairman of American Media Inc., publisher of the National Enquirer, met with Trump’s then-attorney Michael Cohen. Pecker “offered to help deal with negative stories about that presidential candidate’s relationships with women,” according to a statement AMI signed as part of a deal with the Justice Department, “by, among other things, assisting the campaign in identifying such stories so they could be purchased and their publication avoided.”

AMI bought one such story a year later after Playboy model Karen McDougal was prepared to go public with an allegation about having an extended affair with Trump. Cohen tried to then purchase the story from AMI after discussing with Trump the ongoing risk of having the story out of the presidential candidate’s control, but Pecker nixed that agreement apparently after being warned about how it increased his exposure to violations of campaign finance law.

In October 2016 — soon after the publication of the “Access Hollywood” tape drew new attention to Trump’s interactions with women — the lawyer who coordinated the McDougal deal reached out to AMI about another percolating story, the Daniels one. AMI, perhaps spooked after the McDougal situation, connected the attorney with Cohen directly.

A deal was reached about a month before the election: $130,000 for Daniels to stay quiet. Weeks passed without payment, so Daniels started shopping the story again, prompting Cohen to finalize the deal and pay Daniels with money obtained through a home-equity line of credit. The story was buried. Trump won the election. After Trump moved to Washington, the Trump Organization repaid Cohen for the $130,000 in incremental payments identified as part of a legal retainer. Trump himself signed the checks.

This is where the alleged federal crime and the alleged New York crime intersect. The recording of the repayment as something other than the hush-money payment is apparently at the heart of the falsification charge. That the payment was meant to influence the election is the potential federal violation: Money spent on campaign activity by an agent of a campaign has to be reported to the Federal Election Commission (FEC). This wasn’t.

You can see where Trump and his allies might object to that characterization. Was this money spent on the campaign? Was Cohen an agent of the campaign itself? These questions emerged when news of the payment first became public, with the latter question answered unequivocally: Cohen, as part of a plea agreement in which he admitted to violating campaign finance law, agreed that he was acting as an agent of the campaign. He would appear on television on the Trump campaign’s behalf and had conversations about the campaign with Trump.

So then there’s the other question: Was this payment meant to influence the campaign or was it simply Cohen acting as Trump’s longtime fixer? This has been the new focus of Trump’s defenders.

An attorney who interacted with Cohen in early 2018 named Robert Costello offered testimony before Bragg’s grand jury (apparently at the request of Trump’s legal team) that Cohen at the time claimed the payment was simply meant to protect Trump’s reputation. In other words, that the payment wasn’t specifically a function of the campaign and therefore not a criminal act — and, therefore, not the sort of thing that might elevate a falsification charge from a misdemeanor to a felony. Trump, predictably, declared over the weekend that Costello’s forthcoming testimony before the grand jury was “conclusive and irrefutable.”

That seems unlikely. The challenge for Costello is that these conversations apparently occurred as Cohen was trying to avoid implicating himself or Trump in federal crimes. Eventually, Cohen agreed to cooperate with authorities and agreed in a sworn statement, under penalty of perjury, that he had made the payment to aid Trump’s election and at Trump’s behest. Remember that Pecker and AMI had similarly agreed to aid prosecutors; hence the pointed reference in the AMI statement to “assisting the campaign in identifying such stories” (emphasis added).

Despite that evidence, the FEC, tasked with determining whether Trump violated campaign finance laws, declined to press for charges after the four-person commission split on party lines. One of the Democrats said in a statement at the time that the idea the payment wasn’t related to the campaign “defies reality.”

On Tuesday morning, House Speaker Kevin McCarthy (R-Calif.) rose to Trump’s defense.

Asked about the payment, McCarthy first compared the situation to an FEC fine paid by Hillary Clinton’s 2016 campaign centered on how the campaign had reported money used to pay for the dossier of reports compiled by former intelligence officer Christopher Steele. This analogy isn’t terribly strong, given, first, that the campaign and the Democratic National Committee faced punishment for the reporting and, second, that it centered on the mechanics of properly reporting campaign spending to the FEC.

Then McCarthy defended the payment itself.

“I look at it from this perspective: We live in America, and it should be equal justice,” he said, suggesting apparently that Trump should face no more than a fine at worst. But then he tried to dismiss the idea that Trump bore any more significant culpability, inadvertently reiterating why the Daniels payment was worse: “This was personal money. This wasn’t trying to hide. This was seven years ago, statute of limitation.”

But, of course, this was trying to hide. That was the point of the payment, to hide this alleged encounter between Trump and Daniels. That’s why Cohen paid Daniels through a limited liability corporation he had created and why the agreement between Trump and Daniels referred to both of them with pseudonyms. It’s why it was paid with personal money! Had Cohen paid with money reported through the campaign, there would have been no potential criminal violation at all. But the point was to keep the allegations out of sight.

McCarthy probably meant to say it was “personal money” in the sense that it was not money spent to aid the campaign. But instead he reiterated the central reason that Cohen ended up pleading guilty to federal campaign finance violations.

The bulk of McCarthy’s statement and the Republican response has centered on the idea that Bragg’s prosecution is unwarranted or a stretch, which remains to be determined. (After all, no indictment yet exists.) The effort to cast the payment as aboveboard and innocuous, though, repeatedly fails.

We can separate this moment into two pieces. There’s no good reason to doubt that Trump and Cohen discussed paying off Daniels to bury the story before the election and that the Trump Organization then quietly repaid Cohen for fronting the money. It’s not clear whether that action warrants the speculated charges from Bragg’s office — in large part because no charges have been filed.

But this is why Republicans and Trump have so often focused on disparaging Bragg and the district attorney’s probe: because Trump’s actual actions are largely indefensible.