The Already-Strong Campaign Finance Case Against Donald Trump Just Got Stronger—Criminal offenses included

On Friday, the Wall Street Journal broke a story with specific details that strengthen the case against President Donald Trump for campaign finance law violations and that provide evidence that Trump and others knowingly and willfully violated federal laws, which makes these violations criminal.

In January of this year, Common Cause, a nonpartisan organization, filed complaints with the Department of Justice (DOJ) and Federal Election Commission (FEC) alleging that Donald Trump and the Trump Organization violated multiple federal campaign finance laws by coordinating with Michael Cohen on his “hush” payment to Stormy Daniels. Then in February, Common Cause filed complaints with the DOJ and FEC alleging that Donald Trump and tabloid publisher American Media, Inc. (AMI) violated multiple federal campaign finance laws by coordinating on AMI’s “hush” payment to Karen McDougal.

In late August, Michael Cohen pleaded guilty to eight crimes, six counts of tax evasion and bank fraud and two violations of campaign finance laws: (1) making an illegally large $130,000 campaign contribution to the Trump campaign in the form of his payment to Stormy Daniels and (2) causing an illegal $150,000 corporate campaign contribution from AMI to the Trump campaign in the form of AMI’s payment to Karen McDougal.

In the process of pleading guilty, Cohen told the court under oath that the “hush” payments to Daniels and McDougal were made “in coordination with and at the direction of a candidate for federal office,” a clear reference to Donald Trump. Cohen stated further: “I participated in this conduct … for the principal purpose of influencing the election” for president in 2016. These sworn statements by Cohen directly implicated the president in multiple violations of federal law.

Soon after Cohen pleaded guilty, I wrote a piece for Just Security explaining in detail how the case against Trump is a strong one—much stronger than was a similar case that the federal government brought against 2008 Presidential candidate John Edwards, an unsuccessful criminal prosecution.

So what are the new and important details provided by the Wall Street Journal? The Journal reports:

As a presidential candidate in August 2015, Donald Trump huddled with a longtime friend, media executive David Pecker, in his cluttered 26th floor Trump Tower office and made a request. What can you do to help my campaign? he asked, according to people familiar with the meeting. Mr. Pecker, chief executive of American Media Inc., offered to use his National Enquirer tabloid to buy the silence of women if they tried to publicize alleged sexual encounters with Mr. Trump.

This reporting, if true, is strong evidence of two elements to the campaign finance law violations alleged by Common Cause in our complaints. First, this direct conversation between Trump and Pecker satisfies the legal standard for “coordination” between Trump and AMI—AMI’s “hush” payment to McDougal was made “in cooperation, consultation, or concert, with, or at the request or suggestion of a candidate” and therefore “shall be considered to be a contribution to such candidate.”

Second, Trump’s reference to his political campaign makes clear his purpose of receiving assistance from Pecker and AMI was a campaign matter, not a personal matter as Trump surrogates have argued in recent months. Payments made “for the purpose of influencing” a federal election meet the statutory definitions of “contribution” and “expenditure.” In the Edwards prosecution, the DOJ failed to convince a jury that the purpose of the payments in that case was political and not personal. It was the key problem in the Edwards case, and it’s the key that opens the door in a case against Trump.

The Wall Street Journal further reports that in August 2016, “Mr. Trump asked Mr. Pecker to quash the story of a former Playboy model who said they’d had an affair. Mr. Pecker’s company soon paid $150,000 to the model, Karen McDougal, to keep her from speaking publicly about it. Mr. Trump later thanked Mr. Pecker for the assistance.” This is further evidence that the payment met the legal definition of “coordination”—i.e., it was made “at the request or suggestion” of candidate Trump.

The Wall Street Journal found that Mr. Trump was involved in or briefed on nearly every step of the agreements. He directed deals in phone calls and meetings with his self-described fixer, Michael Cohen, and others. The U.S. attorney’s office in Manhattan has gathered evidence of Mr. Trump’s participation in the transactions.

Again, if true, it’s more evidence—apparently now in possession of the U.S. attorney’s office in Manhattan—that Cohen’s and AMI’s “hush” payments to Daniels and McDougal were “coordinated” with Trump as that vital term is understood in longstanding federal campaign finance laws.

The Wall Street Journal reports that Cohen “described to prosecutors his discussions with Mr. Trump and a Trump Organization executive about how to pay Ms. Clifford without leaving the candidate’s fingerprints on the deal.” This attempt to cover up the payment suggests knowing and intentional violation of the campaign finance disclosure laws—also a standalone crime.

To this end, Cohen discussed with Trump his plan to set up a shell company to facilitate reimbursement to AMI for its payment to McDougal. Cohen secretly recorded this conversation and the audio file is now in the possession of federal prosecutors. The same shell company, Essential Consultants LLC, was later used to facilitate the “hush” payment to Daniels.

And there’s more evidence of “coordination” as defined in campaign finance law. Cohen learned from AMI that Stormy Daniels was willing to sell the rights of her story of an affair with Trump.

Mr. Cohen told federal prosecutors he relayed the news to Mr. Trump in his Trump Tower office in the second week of October 2016. That is when Mr. Trump, smarting from the “Access Hollywood” tape, told Mr. Cohen to “get it done,” according to Mr. Cohen’s account to prosecutors. Within days, Mr. Cohen and Mr. Davidson had negotiated a nondisclosure agreement for Ms. Clifford.

And there’s more evidence of intentional violation of campaign finance disclosure laws:

The money was slow in coming because Mr. Trump, Mr. Cohen and the longtime chief financial officer of the Trump Organization, Allen Weisselberg, couldn’t settle on a plan for getting it to Mr. Davidson without anyone being able to trace it back to Mr. Trump, according to Mr. Cohen’s account to prosecutors. Among the options they considered: routing the payment through a Trump-owned property, Mr. Cohen told prosecutors.

Eventually, with Daniels ready to go public with her story and the November 2016 election rapidly approaching, Cohen decided to use his own funds to pay Daniels, planning to then seek reimbursement from Trump.

Finally, in 2017, Mr. Weisselberg of the Trump Organization “completed the reimbursement plan” with Cohen for Cohen’s payment to Daniels. Weisselberg reportedly used the Trump Organization to reimburse Cohen in monthly installments of $35,000, with extra money thrown in as a “bonus” and to cover Cohen’s income tax on the payments, purportedly for legal work that Cohen never did for the Trump Organization.

These details of the reimbursement cover-up scheme make the Trump Organization itself liable for campaign finance law violations. Common Cause alleged these violations in our January 2018 complaints with the DOJ and FEC.

None of these new details come as a shock or surprise. Indeed, Common Cause alleged in our January and February complaints that the “hush” payments happened this way. But the President and his team lied about these actions for months. It’s nice to be vindicated. 

About the Author(s)

Paul Seamus Ryan

Vice President of Policy & Litigation at Common Cause Follow him on Twitter (@ThePaulSRyan).