Since the election sputtered to a conclusion Joe Biden signaled multiple times his taste for revenge is limited. His former prosecutor VP, while showing some bloodlust during the primaries, has since been mostly silent on the matter. The majority of the crowd demanding Trump face punishment sits in the cheap seats of Twitter. While for them it seems there are multiple roads leading to prosecution, in fact under even light scrutiny things fall apart like tissue paper in the rain.
All that’s left to poke into is Stormy Daniels. Her story is of a former porn star whose antics are all over the Internet (oh, Google it yourself) who has sex for money with a private businessman way back in 2006. She then takes more money in 2016 to sign a nondisclosure agreement (NDA) to keep silent. Sensing an opportunity as the businessman runs for president, she willfully violates the NDA to blow new life into her career.
Meanwhile, when faced with jail time for all sorts of dirty deeds, the businessman’s now disbarred lawyer, a felon himself, violates attorney-client privilege to claim on his word the NDA money was actually a complex technical violation of campaign finance law. That’s the basic case someone would have to take to a grand jury to bring down Citizen Trump. Think that’ll work? Fuhgettaboutit!
The problems begin with paying money as part of an NDA is not illegal; lawyers regularly obtain discreet resolutions of issues threatening the interests of their clients. Without admitting much of anything, money is paid from Party A to Party B in return for Party B dropping all future claims, agreeing to never mention something again, handing over documents or photos, whatever you’d like. It happens all the time, and is the dirty little secret keeping sexual harassment alive and well. Wealthy men pay women to remain silent under NDAs. It does not change the legality of all this even if the media calls those payments hush money or payoffs. In fact, you can create a NDA right at home; here’s a fill-in-the-blanks version.
Things only fall into a gray area if you can twist them into a violation of a campaign finance law. The idea is when Trump had his Stormy sexytime he was just another philandering scumbag. However, Trump then became a philandering scumbag presidential candidate, and that NDA money shifted, maybe, from a legal payoff to something akin to a campaign contribution. The what in this case (money for silence) is clear. But it is the why, intent, that matters when you shift from a media kangaroo court to an actual court of law.
The alleged illegality comes from the supposition by Michael Cohen that he can speak to Trump’s intent, that the NDA was not, say, to spare Trump’s marriage from new embarrassment, but “for the principal purpose of influencing an election” amid everyone already knowing Trump was a serial philanderer. If the whole, um, affair, was primarily for the purpose of hiding Stormy from voters instead of hiding Stormy from Trump’s wife, then the money was essentially a campaign contribution and whole new set of laws kick in.
The problem is campaign finance laws require proof a person was willfully violating the law. Cohen’s testimony does not prove Trump knew the payments were illegal. Prosecutors would have to demonstrate that willingness by Trump alongside showing his principal goal was to influence the election. If this ever reaches court, Trump will simply deny that. No jury can say weighing one liar’s word against another, especially these mugs, eliminates all reasonable doubt.
Prosecutors would also have to connect Trump directly to the payment. A check for $35,000, from Trump to Cohen, was supposedly part of $130k paid to Stormy Daniels. Michael Cohen displayed the check during his 2019 Congressional hearing and alleges ten others exist. The checks do not show what the payments were for in the memo field. The checks do not have Stormy’s name on them. Cohen simply claimed they were part of his reimbursement for “illegal hush money I paid on his behalf.” Cohen says he was a cut out, to avoid a direct Trump-Stormy connection, until of course he ratted everyone out to try and save himself.
The checks are receipts for a crime only because Cohen says they are. Under direct questioning, Cohen claimed there was no corroborating evidence linking Trump and Stormy. He said he sent invoices to Trump only for “legal retainer fees,” so don’t bother with the invoices as evidence because Cohen now says he lied on them claiming it was a retainer fee. The checks total over $400k, because supposedly Trump rolled Cohen’s fee and bonus into the amount, so we just have to take his word for it that some of that money was for Stormy. Cohen said some of the checks were signed by Don, Jr. and the Trump Organization’s CFO. That means the checks would be used to implicate personally a person who did not sign them. If this all sounds complicated, it’s because it is.
After all that for Stormy’s payoff to be illegal it will also be necessary to determine the money came from campaign funds. If it was Trump’s private money, even private money he donated to his own campaign, there is likely no case. Even if the money is shown to be campaign funds, illegality is based on the $2,700 donation limit imposed on the supposed “giver” of record, Michael Cohen, in this case. Such limits do not apply to candidates themselves.
The payment is also not a donation if it was made for an expense that would have been paid even if there were no campaign. Say like hiding an affair from your wife. Or paying your lawyer. And oh yeah, the NDA with Stormy will soon be outside the statute of limitations absent some very creative legal maneuvering which would itself be subject to extensive litigation.
But the core problem with this case is absent any hereto unknown witnesses it requires a jury to believe the uncorroborated words of Michael Cohen and a porn star. Summing it up as dryly as only a lawyer can, a former longtime state prosecutor of white-collar and organized crime cases who later oversaw enforcement at New York’s Department of Taxation and Finance said “The burden of proof is substantial.” Trump at worst would be shown to be a conspirator to a contested interpretation of the Federal Election Campaign Act, a de minimis violation. The most likely result would be a fine for something like failure to properly report contributions.
There is a second bedtime story which is even less likely to matter. Karen McDougal, a Playboy model, began an affair with Trump in 2006, claiming she was attracted to his “intelligence and charm” which already says something about her credibility. As Trump’s candidacy gained momentum in 2016, McDougal accepted a $150k fee from David Pecker (you just can’t make this stuff up), a Trump friend and chairman of The National Enquirer, for the rights to her story. The Enquirer never ran the story, technically known as “an editorial decision” but something which the media redubbed as the made-up crime of “catch and kill.” The idea was the Enquirer bought the story, which was soon featured across all media, to hide it. Sleazy, but not a crime.
Politicians are naughty boys, and have violated campaign finance laws before. For example, Barack Obama’s 2008 campaign was guilty of violations involving nearly $2 million, an amount that dwarfs the money in Stormy’s case. Obama’s own Justice Department somehow decided not to prosecute and instead quietly disposed of the problem with a fine levied by the Federal Election Commission.
People will also remember the 2012 failed prosecution of former Democratic vice-presidential nominee John Edwards on charges of campaign finance violations. Edwards was accused of illegally arranging for two wealthy supporters to pay $925,000 to keep his pregnant galpal out of public view during the campaign.
As with Russiagate, impeachment, emoluments, and all the other serial sagas which were supposed to bring Trump down, the current basket of crimes is much more hopeful smoke and media hyperbole than actual fire. The further back prosecutors reach into Trump’s life before he was president, and the more obscure parts of law they feature, the more they try to reshape minor civil offenses into major crimes, the more likely Trump will simply dispose of their efforts by claiming political motivation.
Trump will soon leave the White House. Looking for more vengeance past that seems a dry hole. Remember, you wrestle with pigs, you just end up dirty, and the pig usually likes it. Best advice is stay out of the pen.
Peter Van Buren is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, Hooper’s War: A Novel of WWII Japan, and Ghosts of Tom Joad: A Story of the 99 Percent.
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