The release of a secretly recorded conversation between President Trump and his longtime lawyer Michael Cohen has given rise to questions as to whether the president ran afoul of federal campaign finance laws during his attempts to quiet allegations of extramarital affairs.
But election law experts caution the tape falls short of providing a “smoking gun” such violations were committed.
“I think there could potentially be campaign finance violations, but I don’t think the recording alone is a smoking gun,” Rick Hasen, an election law expert and professor at the University of California, Irvine, told the Washington Examiner. “There are a lot of questions that need to be resolved before we conclude that Cohen or [American Media Inc.] or Trump or the Trump campaign” committed campaign finance violations.
The president’s conduct, as well as the extent of his knowledge of the arrangement, took center stage this week after Cohen released a recording, made in September 2016, during which he and Trump talked about a deal involving American Media Inc., the parent company of the National Enquirer, and Karen McDougal, a former Playboy model.
McDougal alleged she and Trump had an affair starting in 2006, and AMI bought the rights to her story for $150,000 before the 2016 election. The story, however, was never published.
In the tape first broadcast by CNN, Cohen can be heard telling then-candidate Trump he needs to set up a company “for the transfer of all that info regarding our friend David,” an apparent reference to AMI’s chairman, David Pecker.
Later in the discussion, Cohen raises the issue of financing, to which Trump asks, “What financing?”
“We’ll have to pay,” Cohen says.
Rudy Giuliani, Trump’s lawyer, argues Trump then tells Cohen, “Don’t pay with cash,” and instead pay with a check.
Davis, however, says Trump tells Cohen, “Pay with cash.”
A government watchdog group that warned in February the deal may have crossed legal boundaries says the recording bolsters its claims.
Common Cause, the organization, said in complaints filed with the Justice Department and FEC in February that AMI’s payment to McDougal was designed to influence the election and done in coordination with Cohen, thus making it an illegal corporate in-kind donation to the Trump campaign.
The group also argued the payment violated campaign finance law because it was never reported as an in-kind contribution.
Common Cause President Karen Hobert Flynn said Wednesday the recording “reveals much more about who knew what when and adds evidence to back up” its complaints.
Though the recording may bolster the need for further investigation into the deal — Cohen is already under investigation by federal authorities for possible campaign finance violations — experts say it doesn’t definitively prove any party involved broke campaign finance laws.
“I don’t think it’s a slam dunk,” Jessica Levinson, a law professor at Loyola Law School who focuses on election law, told the Washington Examiner.
But Levinson said the recording indicates “the payment was made to keep the campaign together and not to keep a marriage together.”
“If the payment was made for personal reasons, then we’re outside campaign finance contexts,” she said. “But it looks like the payment was made for campaign finance reasons.”
Demonstrating the payment was part of efforts to protect Trump’s campaign rather than his marriage to Melania Trump would hinge on the president’s intent, proof of which is difficult for prosecutors to obtain, Hasen said.
“The applicable test would be whether he was making these payments irrespective of his campaign,” he said. “If he decided to do something at this point in time that he otherwise wouldn’t have done would make it campaign related.”
But Hasen said documentary evidence would shed light on Trump’s motivations.
Texts messages between Cohen and Trump, for example, saying a payment had to be made before a presidential debate could prove intent, he said. To the contrary, a message saying a payment had to be made to preclude Melania Trump from learning of an affair could be exculpatory.
“I think prosecutors know they need some kind of documentary evidence — text messages, recordings, something that would indicate state of mind if they’re going to try to bring this as a criminal matter,” Hasen said.
“I would just caution that we’re seeing a sliver of what prosecutors are seeing,” he continued.
In addition to allegations of possible campaign finance violations committed by Trump and Cohen, AMI is facing scrutiny for its role in the deal.
Ciara Torres-Spelliscy, a professor at Stetson University College of Law, told the Washington Examiner in an email if the company made the payment for the purpose of influencing the campaign, it could be considered by prosecutors to be an in-kind donation in violation of the Tillman Act, a 1907 law prohibiting corporations from making contributions to federal candidates.
Federal agents raided Cohen’s home, hotel room, and office in April, seizing a trove of documents.
The government also reportedly obtained more than 100 recordings Cohen made that contain discussions pertaining to Trump and his businesses. Trump can be heard talking in some of the recordings, according to the Washington Post.
It remains unknown the specifics of what records, documents, and recordings prosecutors have in their possession, as well as other information they’ve gathered in the course of their investigation.
“There’s more than enough to warrant further investigation of criminal activity,” Hasen said, “but this tape does not provide the smoking gun.”
