The Slatest

The Chance of Michael Cohen Facing Criminal Campaign Finance Charges Just Went Up

Michael Cohen, former personal attorney for U.S. President Donald Trump, exits the Loews Regency hotel and walks toward a taxi cab, July 27, 2018 in New York City.
Michael Cohen, former personal attorney for U.S. President Donald Trump, exits the Loews Regency hotel and walks toward a taxi cab, July 27, 2018 in New York City. Drew Angerer/Getty Images

On Thursday, the Wall Street Journal issued a new report about former Donald Trump attorney Michel Cohen and the 2016 hush payment to adult film star Stormy Daniels: Cohen initially rejected the request for money from Daniels’ attorney, but changed his mind after the “Access Hollywood” tape came to light.

The new revelation about Cohen refusing to pay Daniels in September 2016 is big, circumstantial evidence that could further open up Cohen to facing criminal campaign finance charges. This could also reach all the way to Trump himself.

To recap what we knew before this latest news: In October 2016 Cohen agreed to make a $130,000 payment to Daniels in order to buy her silence about an alleged affair with Trump.
Cohen used a shell company to make the payment, which he apparently funded through a home property loan. Although Trump at first denied knowing anything about the payment, Trump’s lawyer Rudy Giuliani later revealed that Trump was paying Cohen back for the Daniels payment in installments. Trump eventually confirmed that.

Cohen’s payment to Daniels, if motivated to help the campaign, would be a likely campaign finance violation. Depending on his motive, either Cohen made an excessive and unreported “in kind” contribution to the campaign—by funding a payment in excess of the $2,700—or Cohen made an unreported loan to the campaign which the Trump campaign should have reported. If Trump knew about it at the time, Trump could be implicated in a conspiracy with Cohen.

The problem with this case, as in the 2012 case against John Edwards for payments by supporters to his mistress, is the question of whether the funds were campaign-related. Edwards’ defense was that his payments were personal to help his relationship with his wife—not campaign related—an argument that led to Edwards being acquitted on one charge and the jury deadlocked on the others.

So too it could be with the Cohen-Daniels payment. If Cohen intended the payment to preserve Trump’s relationship with his wife Melania, for example, rather than to bolster the campaign, then there would be no campaign finance violation. As I have been saying for a while, the case could turn on whether there is documentary evidence indicating an intent one way or the other.

The new Wall Street Journal report describes some apparent documentary evidence. According to the Journal, Daniels’ former lawyer Keith Davidson had approached Cohen in September 2016 about securing a payment from Trump to buy Daniels’ silence. “Mr. Cohen was dismissive, saying the story was bogus,” according to a source who spoke to the Journal. Yet one month later, right as the “Access Hollywood” tape emerged of Trump crudely discussing his sex life and saying disparaging things about women, Cohen was suddenly interested in making a deal with Daniels.

The Journal reports federal prosecutors view the release of the “Access Hollywood” tape as the “trigger” for Cohen’s payments to Daniels.

That’s a big deal. Two important Republican election lawyers have attempted to set a high bar for how to tell when a payment in this context might be campaign-related rather than personal. Charlie Spies told the Journal in February that the payment to Daniels was “an expense that would exist irrespective of whether Mr. Trump was a candidate and therefore should not be treated as a campaign contribution.” And former Federal Election Commission chair Brad Smith wrote in an April op-ed in the Journal that “FEC regulations explain that the campaign cannot pay expenses that would exist ‘irrespective’ of the campaign, even if it might help win election. At the same time, obligations that would not exist ‘but for’ the campaign must be paid from campaign funds.”

Even under these tough standards for what counts as campaign-related, the proof of the timing would be damning for Cohen. Why should Cohen not care a whit about protecting Trump’s reputation in his wife’s eyes in September 2016, but be anxious to close the deal—and shut Daniels up—right as the campaign faced a crisis involving allegations of Trump’s treatment of women? The Daniels payment was not an expense that existed until the campaign needed it. But for the campaign, it seems that Cohen would not have paid.

The Daniels issue is only one of a number of campaign finance issues surrounding the Trump 2016 campaign. A separate issue involves whether the campaign’s solicitation of dirt on Hillary Clinton from Russian government officials violated rules against soliciting foreign contributions to the campaign. We are still a long way from knowing if prosecutors will choose to go after the president or his cronies on these issues.

But make no mistake: Thursday’s report indicates that storm clouds are gathering on the horizon.