Yesterday President Trump’s former attorney and confidant Michael Cohen pleaded guilty to eight charges, including bank fraud and two campaign finance crimes. The campaign finance charges are of especial note because they involved Cohen securing payments to silence Karen McDougal and Stormy Daniels, two women who say they had affairs with the president. (He still denies that the affairs took place.) And, according to Cohen and federal prosecutors, those payments were made “in coordination with and at the direction of” Trump. Let’s unpack these crimes and their implications for the president.
What were the acts for which Cohen pleaded guilty?
There are two. According to the charging document and Cohen’s plea colloquy, he induced a corporation to pay a woman $150,000 in August 2016 to ensure that she would not publicize “damaging allegations” before the 2016 election.
Now, per Department of Justice policy, the charging document shields the identities of people not being charged with a crime by referring to them using placeholders: Corporation-1, Woman-1, Candidate-1, and so on. But thanks to press coverage, we know that the corporation in question was American Media Inc, the owner of the National Enquirer; the woman was former Playmate Karen McDougal; and the “damaging allegations” were about her mid-2000s extramarital affair with Trump. When McDougal approached the Enquirer with her story ahead of the election, the Enquirer tipped Cohen and, at his urging and with his promise of reimbursement, bought the limited life rights to any story of McDougal’s relationship with “any then-married man.”
The second campaign finance crime occurred in October 2016 when Cohen personally paid $130,000 to silence another woman we know to be porn star Stormy Daniels at the request of an individual associated with the Trump campaign. According to Cohen, that individual was Trump himself and the purpose of the payment was to keep Daniels from influencing the election with her story. Cohen took out a fraudulent bank loan (this is one of the other charges) in order to pay Daniels, and later invoiced the Trump Organization for $420,000 over the course of 2017 for “services rendered.”
How are these even crimes?
Federal law generally prohibits corporations from making contributions or expenditures in connection with any election to federal office. Here, Cohen induced such a prohibited payment from American Media Inc. for the express purpose of influencing the election. By structuring the payment this way, Cohen also avoided having the payment show up in the campaign’s FEC filings.
Put another way, American Media Inc was contributing illegally to Trump’s election, and Cohen’s payment structure deprived the American public of information it was legally entitled to about a candidate for public office.
With respect to the second charge, federal law generally prohibits individuals from contributing more than $2,700 to a candidate (for the 2016 election cycle). Contributions include “expenditures made by any person in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate.” Here, Cohen made an expenditure well outside the $2,700 limit when he paid Daniels with the intent to influence the election and at the request of Trump.
Like the first campaign crime, by structuring the payment this way, Cohen (and Trump, if Cohen and federal prosecutors are to be believed) engaged in a conspiracy to defraud the public by hiding the payment despite mandatory disclosure laws.
[Related: Did Michael Cohen actually commit campaign finance violations? Some legal experts aren’t sure]
Would it have been legal if President Trump had directly paid the money?
Possibly. A candidate for office can contribute however much of his own money he wants to his campaign, but he would still have to disclose the contribution in his FEC filings, and that would have defeated the purpose of silencing the women in the first place. Per Cohen, the purpose of this scheme was to prevent the public from finding out about Trump’s affairs just before the election.
Does it matter that Cohen was not reimbursed with campaign funds?
No. Despite the president’s protestations, it is immaterial that Cohen was reimbursed by the Trump Organization rather than the Trump campaign. An unlawful campaign contribution is still an unlawful campaign contribution even if it is reimbursed by a third party. Moreover, an unlawful campaign contribution must still be disclosed to the FEC even if it is reimbursed.
Isn’t this like John Edwards’ case?
Yes and no. John Edwards was charged with accepting illegal campaign contributions which were used to pay his pregnant mistress’s expenses. The goal was to keep her out of sight during his campaign for the presidency in 2008. The jury acquitted Edwards on one charge and deadlocked on the others after hearing evidence that the payments were not intended to influence the election, but were instead meant to protect Edwards’ wife’s feelings. She was dying of cancer at the time. The Justice Department decided not to retry Edwards.
The crucial issue in both cases is whether the evidence shows that the payments were in connection with an election or made for the purpose of influencing an election. Here, Trump says he did not even know of the payments until after the fact. Cohen counters that he made both deals under Trump’s express orders. Federal prosecutors would not have let Cohen plead guilty to facts that they did not believe to be true, so presumably there is additional evidence on this point that has not been made public yet. Keep in mind that Cohen has already released one recording of a conversation he had with Trump about paying McDougal, although that payment ultimately came from American Media Inc., not Cohen or Trump.
What about the Obama campaign’s violations?
The Obama campaign was found to have failed to file timely FEC reports in the weeks leading up to the 2008 election. The FEC levied the largest fine it ever assessed. This is nothing like what Trump is accused of doing. The Obama campaign’s violations were not felonies, nor were they committed “knowingly and willfully,” which is what Cohen pleaded guilty to yesterday. Additionally, there was no evidence that President Barack Obama knew about, much less directed, his campaign’s failure to file reports. Here, Cohen says he committed the crimes at Trump’s direction.
Is President Trump going to be indicted?
Not at present. The Justice Department’s longstanding position is that sitting presidents cannot be indicted because it would render the executive branch unable to perform its constitutionally assigned functions. That position has held for more than four decades, and there is no indication that the department intends to change that view now.
If Trump actually did tell Cohen to make the unlawful deals, can he be impeached?
The Constitution reserves sole discretion in the House of Representatives to decide whether an offense qualifies as a “high Crime and Misdemeanor,” and is therefore an impeachable offense. Quite simply, if a majority of the House decides something is worth impeaching the president over, the only check on their judgment is whether two-thirds of the Senate agrees to remove him from office.
[Dershowitz: Trump safe from impeachment so far]
Gabriel Malor (@GabrielMalor) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an attorney and writer in D.C.
