|How to evaluate the legality of a Trump-related hush payment|
Michael Cohen, President Trump’s personal attorney, center, walks with his attorney Stephen M. Ryan, second from right, as they leave Capitol Hill on Sept. 19, 2017. (Susan Walsh/AP)
The public tally, it seems, is three.
There was the agreement between porn star Stormy Daniels and President Trump’s personal attorney Michael Cohen, signed a few days before the 2016 election, preventing her from discussing an alleged affair between her and the then-candidate.
There was the agreement between the parent company of the National Enquirer and former Playboy model Karen McDougal in which American Media Inc. in mid-2016 bought exclusive rights to the story of her alleged extended relationship with Trump — and then never ran the story.
And, on Thursday morning, a report by the Associated Press and the New Yorker told of another story allegedly buried by AMI. In this case, the company paid $30,000 in late 2015 to a former doorman at a Trump property in New York City. The doorman, Dino Sajudin, had been told that Trump fathered a child out of wedlock in the 1980s. The deal with AMI prevented him from discussing the subject publicly at the risk of a $1 million fine.
[National Enquirer paid second source with embarrassing Trump rumor]
“Shortly after the company paid Sajudin, the chairman and C.E.O. of A.M.I., David Pecker, who has spoken publicly about his friendship with Trump, ordered the A.M.I. reporters to stop investigating,” reports the New Yorker’s Ronan Farrow. (Farrow pointedly notes that the magazine had uncovered no evidence to suggest that the woman was actually Trump’s daughter.) Shortly after the election, the AP reports, Sajudin was released from his contract.
In broad strokes, the Sajudin agreement mirrors that with McDougal. All three, though, seem to have a common aim: Burying stories unfavorable to Trump — who counts Pecker as a close friend — as he was campaigning for the presidency. All three payments happened in an 11-month span from November 2015 to October 2016, all months during which Trump was actively contesting for the presidency.
The latest report follows Monday’s FBI raid of Cohen’s home and office, seizing, among other things, information related to these payments. The Washington Post reported that federal prosecutors were looking at possible campaign finance violations committed by Cohen, a question that’s been lingering since the payment to Daniels was first reported.
It seems, at this point, fair to assume that more payments involving salacious allegations against Trump are likely to emerge. In light of that, we’ve put together a guide for determining how such payments might violate campaign finance laws with a great deal of assistance from Lawrence Noble, senior director at the Campaign Legal Center.
There are two primary things to consider.
Why was the payment made? This is the crux of the issue, and it’s more complicated than it might seem.
All three of these agreements seem pretty clear in their goals. For the duration of 2016, none of the three people receiving money would be allowed to share their stories about Trump without incurring a penalty, ergo the goal was to keep stories about Trump private, ergo the goal was to aid Trump’s campaign. If the payments were meant to aid the campaign, that’s political spending that might be regulated.
But past practice and intent matter. If AMI routinely paid for the exclusive rights to stories that it ended up not using — if, that is, the Sajudin situation were something that happened regularly with other payment recipients and other celebrities — the payment may not be easily tied to Trump’s candidacy explicitly. (McDougal, we’ll note, didn’t only receive money: AMI also promised her the opportunity to write columns for its publications, a promise that didn’t really materialize.) The same holds true for Cohen’s deal with Daniels. If Cohen often negotiated agreements intended to protect Trump from bad publicity, that’s a defense against his having violated campaign finance law.
If Cohen made such payments all the time but made this expressly to aid Trump’s campaign, then that history doesn’t matter. Past practice can be evidence against the idea that the spending was meant to aid the campaign, but just because Cohen and AMI did this on other occasions isn’t itself exculpatory.
One factor that’s important is when the payment was made. The Daniels payment — finalized less than two weeks before Election Day while stories about Trump’s sexual behavior were swirling — is much easier to tie to political intent than other payments might be. When Daniels was interviewed on “60 Minutes,” a former chairman of the Federal Election Commission argued that this was a more clear-cut case than that of former senator John Edwards (D-N.C.), who was accused of being involved in a similar payment before the 2008 election. One of those payments, though, happened in early 2007, months before he was a candidate.
You’ll notice that this very quickly enters murky territory. How do you prove the intent behind these payments? Well, one thing you can do is search someone’s home and office for documentation that might shed light on why the payments were made.
If there is no intent to influence the campaign, there’s no political spending and, therefore, no violation of campaign finance law. If there is intent to influence the campaign, we come to the other key consideration.
Who is making the payment? Let’s say that you love Trump and also you have more money than you know what to do with. You hear from a friend in October 2016 that some guy is going around telling people that he knows a dirty secret about Trump. You reach out to the guy and make an agreement: In exchange for $20,000, he’s not allowed to mention that secret until after Election Day. He agrees; a deal is signed.
That’s perfectly legal.
But wait, you say, it’s clearly meant to influence the election! And that’s true. But people can spend money on independent political activity if they wish. There’s a process by which direct advocacy for a candidate — “vote for Smith” — is regulated, but this isn’t that sort of direct advocacy. So: kosher — with an important caveat that’s relevant to the two AMI cases above.
If you talk to anyone at the Trump campaign about your payment, the picture changes. At that point, you’re probably making a contribution to the campaign — and at $20,000, it’s illegally high. Noble notes that the FEC has debated for years over how much encouragement from the campaign is needed for this to constitute an illegal contribution, but generally anything short of silence or discouragement from the campaign makes the payment coordinated activity with it.
In this case, that includes Cohen.
A staffer at the Trump Organization without ties to the campaign could make the contribution without any legal problems, as in the $20,000 scenario above. But that’s not Cohen. While he wasn’t paid by the campaign, he was clearly empowered to speak on its behalf on television and at rallies.
The AP reports that Cohen “had discussed Sajudin’s story with the magazine when the tabloid was working on it,” which would probably cross the line articulated above. Similarly, McDougal, in an interview with CNN’s Anderson Cooper, said that Cohen was involved in negotiations for her agreement with AMI, too.
The rules for a business are stricter. When it was revealed that Cohen had used his Trump Organization email address to coordinate the Daniels payment, that, Noble said, violated a statute prohibiting corporations from “facilitating the making of contributions to candidates or political committees.” AMI, as a media outlet, falls into a different category, particularly if the payments weren’t meant to aid Trump’s candidacy. But if, say, Starbucks paid someone not to talk about a relationship with Trump to aid his candidacy, that’s illegal.
Keep in mind that the campaign could make these payments completely legally. There’s a catch: It would have to report the payments. The campaign could also reimburse someone for making such a payment, though that person would probably have made an illegal contribution if the total were more than the allowable contribution limit.
If all of this seems complicated and surrounded by wide swaths of gray area, you’re correct. Campaign finance law is tricky and dependent on a lot of factors. What’s more, it’s overseen by a federal agency that is notoriously impotent and loath to pursue violators. The question of whether a specific payment violated the law is tricky to answer. The question of whether the FEC, acting of its own accord, would seek punishment for a violator is easier: probably not.
Which makes the involvement of federal prosecutors in the current scenarios that much more interesting.
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