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By Jessica Levinson, professor at Loyola Law School
When Michael Cohen, Trump’s former personal lawyer and fixer, plead guilty in open court in August 2018 to violating campaign finance laws, he also implicated Trump. At the time, these accusations were tantalizing but largely unproven. And of course there were the president’s vehement denials that he was aware of the payments that gave rise to Cohen’s guilty plea.
But the evidence keeps mounting. Based on legal documents and dozens of interviews, the Wall Street Journal has published an article demonstrating Trump’s pivotal role in the payments that Cohen made or facilitated. The Journal’s report makes it increasingly difficult for Trump to believably claim he knew nothing of the payments made to silence adult film star Stephanie Clifford (popularly known as Stormy Daniels) and Playboy model Karen McDougal, who claim to have had affairs with him.
As Cohen admitted under oath in open court, he made or facilitated payments to buy both women’s silence at Trump’s direction. Cohen says he paid directly paid Stormy Daniels $130,000 in exchange for a non-disclosure agreement.
The second payment involves McDougal. According to the Journal’s reporting, Trump made an explicit agreement with his friend, David Pecker, the chairman of America Media (AMI), that Pecker would “catch and kill” stories by women who claimed to have had affairs with Trump. (AMI is the parent company of the National Inquirer.) “Catch and kill” is a practice by which certain media corporations will pay for exclusive access to stories and then not publish them, ensuring that those stories never become known to the public. Cohen says he helped facilitate the $150,000 payment by AMI to McDougal in exchange for her story and modeling opportunities.
The threshold legal question is whether the payments were made to keep Trump’s marriage together (for personal reasons) or to keep the campaign together (for political reasons).
The threshold legal question is whether the payments were made to keep Trump’s marriage together (for personal reasons) or to keep the campaign together (for political reasons). Payments made “for the purpose of influencing” a federal election are covered by federal campaign finance law. Payments made for personal reasons are not.
According to Cohen, both of these payments were made to influence the election; he told us so in open court.
But we don’t even have to believe Cohen. There is plenty of other evidence to suggest that these payments were made to keep Trump’s political aspirations alive. For one thing, Cohen made the payment to Stormy Daniels mere weeks before the election. Trump’s current personal attorney, Rudy Guilianni, made the implications of this payment and its timing clear on national television. “Imagine if that [the allegation] came out on Oct. 15, 2016, in the middle of the last debate with Hillary Clinton,” he told “Fox & Friends” in May.
Similarly, it appears the payment to McDougal is covered by federal campaign finance law because it was made to help Trump’s presidential run. The Journal’s reporting indicates that Trump and Pecker agreed that payments would be made to “catch and kill” stories in order to help Trump’s campaign.
Once it is established that both payments were made to try to get Trump elected, the next question is how exactly each payment violates campaign finance law.
The federal limit for contributions to federal candidates is $2,700. If the $130,000 payment made by Cohen to Stormy Daniels is viewed as an indirect contribution to the Trump campaign — which I believe it should — the contribution is $127,300 over the limit. Cohen detailed this in his guilty plea. Cohen also says he was later repaid, with interest and a bonus, for the payment to Daniels. This raises the secondary question of whether the payment could also be viewed as an improper loan to the Trump campaign that was not reported.
Meanwhile, it can be argued that the $150,000 payment AMI made to McDougal was an illegal in-kind corporate contribution to Trump’s campaign. Federal law prohibits corporations from contributing to campaigns.
There are two reasons why we should view the payment from AMI to McDougal as an illegal corporate contribution. First, per the explicit agreement between Pecker and Trump, the payment was made for the purposes of influencing the election. The fact that, according to the Journal, AMI told McDougal its payment was made both to catch and kill her story and to secure her modeling services does not save AMI from liability. AMI’s actions and the Journal’s reporting make it pretty clear that AMI’s alleged payment for modeling services was really just a pretext for purchasing and killing the story.
There is a so-called “press exemption” or “media exemption” in federal law that allows media corporations broad latitude in deciding which stories to publish and which candidates to endorse, as long as they are performing a “legitimate press function.” If a right-wing media corporation decided not to report on stories critical of Trump, for example, that would be perfectly legal. But I do not believe AMI was acting as media corporation in this case and therefore should not be eligible for the protections afforded to medial corporations. It did not merely decide to steer clear of coverage critical of Trump. Instead, it explicitly agreed to buy up stories critical of Trump and prevent other media corporations from obtaining that information and reporting it. The fact that Cohen was involved at all adds even more evidence to the argument that AMI was working on behalf of the Trump campaign.
Cohen pled guilty and AMI is now cooperating with federal prosecutors in exchange for a grant of immunity. But do Cohen and AMI’s legal problems impact Trump? They certainly won’t help him. Some legal experts who have examined Cohen’s guilty plea, like former Watergate prosecutor Nick Akerman, believe Cohen implicated Trump as an unindicted co-conspirator. Cohen’s lawyer Lanny Davis certainly shares this view, telling the press, “Donald Trump directed [Cohen] to commit a crime by paying payments to two women for the principal purpose of influencing an election.”
Trump, of course, has continued to deny any wrongdoing or knowledge of the payments. But those denials are becoming harder and harder to believe.
However, for Trump to be criminally liable for campaign finance violations, he must have knowingly and willfully violated those laws. This is important. If Trump can believably claim he did not know what he was doing was illegal, he should not be charged with criminally violating federal campaign finance laws. And therefore the question boils down to, as it always does, what did the president know and when did he know it.