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In Response to FEC Complaint by Common Cause, Trump's Lawyer Michael Cohen Says He Paid $130,000 to Porn Star. Is There a Campaign Finance Violation?
Posted on February 14, 2018 8:00 am by Rick Hasen
Maggie Haberman for the NYT:
Michael D. Cohen, President Trump's longtime personal lawyer, said on Tuesday that he had paid $130,000 out of his own pocket to a pornographic-film actress who had once claimed to have had an affair with Mr. Trump.
In the most detailed explanation of the 2016 payment made to the actress, Stephanie Clifford, Mr. Cohen, who worked as a counsel to the Trump Organization for more than a decade, said he was not reimbursed for the payment.
"Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly," Mr. Cohen said in a statement to The New York Times. "The payment to Ms. Clifford was lawful, and was not a campaign contribution or a campaign expenditure by anyone."
He declined to answer several follow-up questions, including whether Mr. Trump had been aware that Mr. Cohen made the payment, why he made the payment or whether he had made similar payments to other people over the years.
Here is a statement from Cohen, where he said he used his personal funds "to facilitate a payment."
Orin Kerr:
The press is widely reporting, apparently based on this statement, that Cohen said he paid the $130,000 to Daniels out of his own pocket. The phrase "out of his own pocket" seems to be used by pretty much every story. "Trump's Longtime Lawyer Says He Paid Stormy Daniels Out of His Own Pocket," the New York Times headline says. And the Fox News headline is similar: "Michael Cohen, Trump's lawyer, says he paid Stormy Daniels $130,000 out of own pocket."
Now, clearly the most important part of the story is verification from the President's own personal lawyer that, in 2016, he was himself involved in paying $130,000 to a porn star who had claimed to have had an affair with the President. I'm old enough to remember when something like that would have been a major Presidential scandal.That seems like a long time ago.
But, with my apologies, let me focus on one really small part of the story: Does Cohen actually say he paid the $130,000 out of his own pocket? If Cohen's statement above is the only statement he has made, which as far as I can tell is the case, he never actually says that. All Cohen says is that he used his personal funds to "facilitate a payment of $130,000."
To "facilitate", the dictionary tells us, means to assist with or to make something easier. Given that, I would think that the most literal reading of Cohen's statement is just that he used his own funds to arrange the payment. He's not making any statement about whose $130,000 was paid. For example, if it took Cohen a few hundred dollars to set up an entity to pay Daniels, and to wire someone else's $130,000 to her, then he would have been using his own personal funds to faciltate that payment. Sending on the money would be a transaction between two parties, Daniels and the entity Cohen set up, and there would have been no need to reimburse Cohen $130,000 because it wasn't Cohen's money that was sent.
Now whether Cohen paid using his own funds or was reimbursed personally by Trump or someone else, it still may be a campaign finance violation IF this is was a campaign related payment. If Cohen paid, then he made an excessive contribution to the campaign. If he funneled money for others, it might be a conduit contribution or an unreported campaign expenditure from Trump.
The real unanswered question is whether this was a campaign-related payment, or instead money paid to cover up a private affair. We've seen something like this before, in the John Edwards-Bunny Mellon hush money situation (where the jury found Edwards not guilty). The difference here is that this happens in the throes of the campaign, and it seems harder to argue that this is something just to preserve Trump's reputation unrelated to the campaign.
Thomas Frampton has a detailed analysis of the legal issues and permutations (written before Cohen's admission) over at the Harvard Law Review blog. A key point from Frampton:
While there is much we still need to learn about the $130,000 reportedly paid to Daniels, there can be little doubt of its purpose. According to recent reporting, while rumors about Trump and Daniels had circulated for years, Daniels was talking with Slate, Good Morning America, and other media outlets in October 2016. The Trump campaign was still reeling from the Oct. 7, 2016 revelation of the infamous Access Hollywoodtape, but by the end of the month, the campaign had turned a corner: Clinton's sizeable national polling advantage was evaporating. Then, "about a week before the election, Daniels stopped responding to calls and text messages" from the media. According to the Wall Street Journal, the Delaware LLC that transferred the money to Daniels's representative was formed on October 17, 2016, less than three weeks before the November 7, 2016 election. At least with respect to the motivation for the payment, the evidence that was lacking in the Edwards case (and which ultimately sunk the prosecution) is abundant in Trump's case….
On the other hand, it does seem somewhat harder to prove that the payment is a campaign "contribution" if its original source was Trump's own personal funds, but for reasons that are more atmospheric than legal: it strikes me as harder to convince a jury that such an expense is fundamentally about the election (rather than about personal, reputational harm) when the candidate himself ponies up the cash, even if the timing is suspicious. Consider the following. A follicly-challenged candidate, who (in his private life) takes great pride in his baldness, has learned from his advisors that he will gain ten points in the polls if he undergoes a painful hair-replacement surgery. The candidate's desire to be elected eventually overcomes his affinity for his baldness, and though he never would have dreamed of such a thing before his candidacy, he assents to the $5,000 operation. On the most basic, legalistic level, it shouldn't matter whether the candidate or a supporter pays for the $5,000 operation: the payment is a "contribution" to the campaign. But if such a case were ever to go to trial, it would seem much easier to mount a defense that this payment was "personal" in some basic way if the candidate himself paid for it.
Given pre-candidate Trump's reputation, it is not clear that the payment in this instance could be considered personal so as to not sully his already-sullied reputation. Remember this comes after the "grab them by the pussy" comments.
I don't expect much to come out of the FEC, and in terms of possible criminal charges Frampton notes that since this stems from the campaign, there would be good reason for Jeff Sessions to recuse from any consideration of whether DOJ would charge Cohen or anyone else with a crime. (Wholly apart from the politics, the John Edwards saga, not to mention Sens. Menendez and Ted Stevens may make the Department a little gun shy.)
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