This column contains a correction.
There is now strong, public evidence that the president of the United States committed a felony.
In June 2016, former Playboy model Karen McDougal began attempting to sell the rights to a story about an alleged affair with then-presidential candidate Donald Trump. Her attorney reached out to American Media Inc. (AMI)—the parent company of the National Enquirer—which in turn contacted Michael Cohen, Trump’s personal lawyer. The CEO of AMI had a previous relationship with Trump and Cohen, having met with them in 2015,* and offered to help purchase and kill negative stories. In August 2016, during the height of the presidential campaign, Cohen convinced AMI to pay $150,000 for McDougal’s story, promising that he would later reimburse the payment. According to federal prosecutors, “The agreement’s principal purpose was to suppress [McDougal’s] story so as to prevent the story from influencing the election.”
Two months later, in October 2016, adult film actress Stormy Daniels informed the editor of the National Enquirer that she intended to go public with allegations of an affair with Trump. The editor again contacted Cohen, who negotiated an agreement with Daniels’ attorney to purchase her silence for $130,000. Cohen made the payment through a shell company, presumably to help mask his involvement, and was later reimbursed by Trump’s real estate company—which paid him an additional $290,000 in monthly installments.
In both instances, according to prosecutors, Cohen “acted in coordination with and at the direction of” then-candidate and current President Donald Trump.
There is no longer any reason to doubt that, in making these payments, Cohen committed a crime; he has admitted as much and was sentenced to three years in jail on December 12. It is unlawful to provide a federal candidate with contributions—payments for the purpose of influencing an election—above specified limits, and Cohen’s payment was well above the individual limit of $2,700 per election. It is also illegal for corporations to contribute to candidates, which covers the reimbursement from Trump’s real estate company as well as the payments from AMI and Cohen’s shell company. Finally, it is unlawful to fail to disclose campaign contributions—which, of course, was the point of the hush money scheme. An individual can be criminally prosecuted for these activities if they knowingly violate the law, and violations involving more than $25,000 can result in up to five years of imprisonment.
President Trump no longer denies that he knew about the payments, or even that they were made at his direction. The only question, therefore, is whether Trump knew that the payments were illegal. There is strong evidence that he did:
- Cohen knew that the payments were illegal and went to great lengths to hide their origin.
- Cohen had a legal duty to advise Trump that the payments would be illegal.
- According to Cohen’s sworn testimony, Trump coordinated and directed Cohen’s actions.
- AMI also admitted that it knew the payments were illegal.
- The Wall Street Journal found that “Mr. Trump was involved in or briefed on nearly every step of the [hush money] agreements,” citing evidence gathered by the U.S. attorney’s office in Manhattan.
- Trump repeatedly lied about the payments to the public, both directly and through his lawyers and spokesmen.
As usual, President Trump has taken to Twitter to defend himself. He characterized one of the payments—which one is unclear—as a “a simple private transaction,” stating that it was wrongly being called a campaign contribution. And he claimed that, even if it was a campaign contribution, “it is only a CIVIL CASE, like Obama’s – but it was done correctly by a lawyer and there would not even be a fine. Lawyer’s liability if he made a mistake, not me.”
Law professor Richard Hasen has called this defense “beyond unconvincing.” For starters, the comparison to former President Barack Obama’s campaign is laughable. Obama raised and spent nearly $750 million, and as happens with all large campaigns, his staff erroneously failed to timely report or refund a small percentage of those funds—paperwork errors with which Obama himself had nothing to do. In contrast, Trump directed his personal attorney to pay hush money to cover up two alleged affairs in order to better his chances of winning an election. It’s like conflating a bank robbery with accidentally overdrawing an account; there’s simply no comparison.
As for Trump’s claim that this is all a matter of whether the payments were “done correctly”: There is no correct way to accept and conceal illegal payments. Cohen is liable; that’s not in question. The only question is whether Trump, too, is criminally liable, which hinges on his knowledge that the payment was illegal. The evidence suggests that he knew.
Trump’s legal adviser Rudy Giuliani, in addition to other commentators, has compared the case against Trump to the 2011 prosecution of former Sen. John Edwards (D-NC) for a hush money scheme involving an affair with a videographer. The jury in that case couldn’t reach a verdict on four counts and acquitted Edwards on the fifth. But the Edwards case was far weaker than the case against Trump. The individuals who made the hush money payments were unable to testify—one was too old, and the other, deceased—and the timing and circumstances of the payment were less clearly connected to the election; all of the payments were made in the year preceding the election, except for one payment that was made after Edwards withdrew his candidacy. Moreover, there was little or no evidence that Edwards knew that the payments were illegal. His compliance officer testified that she wasn’t aware that the payments were prohibited.
In sharp contrast, Trump has to contend with the fact that both Cohen and AMI have cooperated with prosecutors; both Cohen and AMI have admitted that payments were intended to influence the election; and Cohen is now headed to jail. Giuliani himself seems to have conceded that the Trump payments were at least partly related to the campaign. There is virtually no question that the payments were campaign-related—the main issue that bogged down the Edwards case.