We can’t say we weren’t warned. In August 1998, as Congress moved toward impeaching Bill Clinton, Donald Trump was asked by Chris Matthews in a CNBC interview if he’d ever run for president. “People want me to all the time,” Trump replied. “I don’t like it. . . . Can you imagine how controversial I’d be? You think about [Bill Clinton] with the women. How about me with the women? Can you imagine?”
Exactly 20 years later, investigations into Donald Trump and his associates are leaving less and less to the imagination. They are also providing a great opportunity for most Republicans and most Democrats to act like shameless hypocrites.
Twenty years ago, Republicans were compelled by the iron logic that perjury and obstruction of justice to cover up an affair with a White House intern required the impeachment of Bill Clinton. Democrats argued that only raving partisans or prudes would impeach a president for lying about sex. Now President Donald Trump faces evidence and testimony from his former lawyer Michael Cohen that in 2016 Cohen made payments in violation of campaign-finance laws totaling $280,000 to women who alleged affairs with Donald Trump “in coordination with and at the direction” of candidate Trump “for the principal purpose of influencing the election.” In the days and weeks to come, you may get whiplash from watching Republicans and Democrats switch sides on the question of whether committing a crime to cover up an immoral but legal sexual affair rises to the level of high crimes and misdemeanors.
Of course, the question of hypocrisy here rests in part on the assumption that Trump is in fact guilty of a felony, and many of his supporters dispute that. As evidence, they point to a case that more closely mirrors the allegations Trump is facing today: the 2012 trial of former North Carolina senator John Edwards, who was accused of violating campaign finance laws because his donors made nearly $1 million in payments to his mistress during Edwards’s 2008 presidential campaign. She gave birth to a daughter fathered by Edwards in February 2008. The jury was hung on five counts and found Edwards not guilty of one.
The Heritage Foundation’s Hans von Spakovsky, who served on the Federal Election Commission from 2006 to 2007 and on President Trump’s election integrity commission in 2017, wrote an article in 2012: “Why John Edwards Is Guilty.” “As the FEC said in a prior advisory opinion, the key question is, ‘Would the third party pay the expense if the candidate was not running for Federal office?’ ” he wrote. The multimillionaire Edwards could have made the payments himself, von Spakovsky noted, but “such personal payments would have blown up his candidacy and made it impossible to hide what he clearly wanted to keep hidden.”
“My theory at the time proved to be wrong,” von Spakovsky told me the day after Cohen’s guilty plea. Not only did a jury fail to convict Edwards, von Spakovsky argues the case against Edwards was stronger than the one against Trump. He notes that Trump reimbursed Cohen, and “a candidate can spend as much of his own money as he wants” on his own campaign. But those contributions must be disclosed. “Apparently, there’s a pattern of making these kinds of payments,” he says, to bolster the argument that the payments weren’t primarily intended to influence the campaign. “The [Edwards] mistress was actually working for the campaign. So those were optimal facts for the government, and yet they lost the case,” he says.
That’s one side of the argument.
Fred Wertheimer of Democracy 21, an organization that pushes for strict campaign finance laws, argues the opposite—that the case against Trump is stronger than the case against Edwards. “I thought Edwards violated the law,” says Wertheimer, but “in the Edwards case you did not have anyone involved who said the money was given to influence the election.” Now, the government has the testimony of Michael Cohen. Von Spakovsky counters: “Cohen was agreeing to a plea deal. I think he was crying when he did it. He was saying absolutely anything in order to get a light sentence. . . . That to me has no credibility or relevance whatsoever.”
In addition to Cohen’s testimony, and whatever evidence there is detailing his coordination with the Trump campaign, prosecutors will also have the testimony of David Pecker, whose National Enquirer was involved in the deal to “catch and kill” stories about Trump’s affairs. Vanity Fair reported on August 23 that Pecker was granted immunity in exchange for his testimony. The alleged campaign-finance law crimes involve both exceeding the $2,700 per person limit on contributions and violating the law banning corporate donations. Cohen has already released an audio tape in which he discusses setting up a company to make one payment of $150,000 in what appears to be hush money to a former Playboy model. “I need to open up a company for the transfer of all of that info regarding our friend David,” Cohen says, apparently referring to David Pecker. Trump replies: “So, what do we got to pay for this? One-fifty?”
For the payments to be illegal, it must be proven they were made for the purpose of influencing the election. Wertheimer argues that the timing of the Cohen payments makes the case against Trump stronger. Edwards set up the financial scheme with his donors shortly after the affair and pregnancy occurred, and Edwards argued he had done so to keep his wife, who was suffering from cancer, from finding out. Both of Cohen’s hush-money payments occurred after Trump was the nominee, nearly a decade after the alleged affairs occurred. Furthermore, as reported by the Wall Street Journal, Cohen resisted paying off porn actress Stephanie Clifford when her lawyer first approached him in September 2016. But shortly after the Access Hollywood tape emerged in which Trump bragged about grabbing women “by the pussy”—comments Trump dismissed as “locker-room talk”—Cohen reached a $130,000 deal with Clifford.
The deal occurred as many prominent Republicans were abandoning Trump. Even some of Trump’s staunchest conservative supporters—such as talk radio host Hugh Hewitt—were calling on him to drop out of the race. If the hush-money arrangement with Clifford had been intended simply to keep Trump’s current wife from finding out, why wasn’t it made until October, and only after the Access Hollywood tape was released? The timing of this payment appears to be some of the strongest evidence that Trump directed the payment to advance his campaign, thus violating the law.
A jury will not hear a case against Trump anytime soon, if ever, given the Justice Department’s longstanding position that a sitting president cannot be indicted. And there are other questions, perhaps more important than Trump’s guilt or innocence of campaign-law violations in determining whether or not he should be impeached and convicted. Should a president be impeached for crimes committed before he took office? Does this crime, if proven, really rise to the level of high crimes and misdemeanors? After the Senate failed to convict Bill Clinton, would it really convict Donald Trump? These are all questions the next Congress may decide. But perhaps the most important questions for now are: What else does Michael Cohen know, and what else will Robert Mueller find out?
