Jurisprudence

The DOJ Should Release All the Evidence in the Trump Campaign Payoff Case

What else did the investigation into Trump’s campaign uncover?

Hope Hicks
Former White House communications director Hope Hicks leaves after a closed-door interview with the House Judiciary Committee on June 19 on Capitol Hill.
Alex Wong/Getty Images

On Thursday, under federal court order, the Department of Justice made public the search warrant applications that led to the April 2018 raid on the home, office, and hotel room of Michael Cohen, President Donald Trump’s former attorney and longtime fixer. Here are two things we quickly learned from these newly unsealed documents.

As we long suspected, Trump was in regular communication with Cohen while Cohen was arranging an illegal “hush payment” to Stormy Daniels in October 2016—strong evidence that Trump committed campaign finance crimes on his way to winning the White House.

And we now know that Hope Hicks, then serving as communications director for the 2016 Trump campaign, was likewise in regular contact with Cohen at the time of the Daniels “hush payment,” which implicates her in campaign finance crimes.

This now-public evidence of Trump’s campaign finance crimes is likely only the tip of the iceberg. These facts were known by the DOJ before it obtained and executed search warrants on Cohen and sent him to prison via guilty plea to multiple campaign finance law violations and other crimes. Since that time, the DOJ accumulated evidence not only from the Cohen raid and Cohen’s testimony, but also from cooperating witnesses David Pecker and Trump Organization Chief Financial Officer Allen Weisselberg, both of whom have received some type of immunity from the DOJ in this matter.*

My involvement in this case goes back to early 2018, when I filed complaints on behalf of nonpartisan watchdog Common Cause with the DOJ and the Federal Election Commission alleging that Trump, the Trump campaign, Cohen, and American Media Inc. had violated federal campaign finance laws via “hush payments” to Daniels and Karen McDougal in the runup to the 2016 presidential general election. Specifically, we alleged that Trump, Cohen, and other Trump campaign officials broke federal law by orchestrating these payments for the purpose of influencing the 2016 election, failing to comply with federal campaign contribution limits and disclosure requirements. I’ve detailed these legal arguments in other articles for Just Security.

In April 2018, the FBI conducted the Cohen raid, in search of evidence of campaign finance crimes and other wrongdoing. In August 2018, Cohen pleaded guilty to two campaign finance crimes related to the hush payments to Daniels and McDougal and is now serving a three-year prison sentence.

Which brings us to Thursday, when the search warrant applications for the Cohen raid were made public. The newly unsealed court documents detail evidence of at least five conversations between Cohen and Trump between Oct. 8 and Nov. 4, 2016, and multiple conversations between Cohen and Hicks, with some conversations involving all three: Cohen, Hicks, and Trump. Cohen’s conversations with Trump and Hicks were clustered among his conversations with other participants in the illegal “hush payment” scheme: Daniels’ lawyer Keith Davidson, and David Pecker and Dylan Howard of AMI. The DOJ has phone and text message records documenting these communications and relied on this evidence of illegal activity to establish the “probable cause” necessary to obtain search warrants for the April 2018 raid on Cohen.

The newly unsealed search warrant applications make clear that the amount of communication between Cohen and Trump right before the 2016 general election, while Cohen was arranging the secret payment to Daniels, was unusual. In the months prior to October 2016, Cohen had been in contact with Trump via telephone only “about once a month,” according to a search warrant application. But communication between Cohen and Trump spiked in early October 2016, when Keith Davidson contacted Cohen to discuss the possibility of a hush payment to prevent her from going public with her story on ABC’s Good Morning America, and the Washington Post published the now-infamous Access Hollywood tape of Trump and Billy Bush.

Despite this evidence of Trump’s campaign finance crimes, the DOJ indicated in a court filing this week, without further explanation, that the

Government has effectively concluded its investigations of … who, besides Michael Cohen, was involved in and may be criminally liable for the two campaign finance violations to which Cohen pled guilty.

We can assume that regardless of the amount of evidence of campaign finance crimes by Trump, the DOJ would not have indicted him due to its policy against indicting a sitting president—the same policy that bound special counsel Robert Mueller’s recent investigation into obstruction of justice by Trump. But as federal district court Judge William Pauley noted this week in his order to the DOJ to publish the Cohen investigation search warrant materials:

The campaign finance violations discussed in the Materials are a matter of national importance. Now that the Government’s investigation into those violations has concluded, it is time that every American has an opportunity to scrutinize the Materials.

Every American should have an opportunity to scrutinize the complete body of evidence of Trump’s campaign finance crimes, not just these search warrant applications. Anything less would amount to a DOJ cover-up. If the DOJ won’t willingly disclose evidence gathered in the now-closed investigation, Congress should compel it by subpoena. And, in the event Trump is no longer president in 2021, the five-year statute of limitations on his 2016 crimes leaves a bit of time for renewed investigation and possible criminal prosecution.

Correction, July 21, 2019: An earlier version of this story misstated that David Pecker and Allen Weisselberg had entered into nonprosecution agreements with the DOJ. They were granted immunity from the DOJ but it’s unclear if they have a formal nonprosecution agreement.

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