WASHINGTON — President Donald Trump defended himself Monday against prosecutors’ accusation that he directed illegal payments before the 2016 election to two women to stay silent about alleged extramarital affairs with him, insisting that the payments were “a simple private transaction” — not election-related spending subject to campaign-finance laws.
In a pair of early-morning tweets, Trump also maintained that even if the hush-money payments did count as campaign transactions, any failure to obey federal election regulations should be considered only a civil offense, not a criminal one. And he blamed his former lawyer, Michael Cohen, who has admitted to helping arrange the payments. “Lawyer’s liability if he made a mistake, not me,” Trump wrote.
Trump is effectively an unindicted co-conspirator in Cohen’s campaign-finance crimes, but his legal exposure and political liability turn on several factors, including whether a president can be charged with a crime — not while he is in office, the Justice Department has concluded — and the political mood in Congress. Republican Senate leaders were nearly unanimous Monday in dismissing any new peril facing the president.
But Trump’s plea of ignorance has flaws, said Richard L. Hasen, a professor of election law at the University of California, Irvine. While the Obama and McCain campaigns were fined for failing to swiftly report certain expenditures, he said, they had filed corrected reports about the mistakes to federal elections officials and then paid the fines, rather than trying to hide the payments for more than a year.
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Trump “looks pretty guilty from what we see so far, but whether he would actually face any liability is a huge question,” Hasen said.
Though it is rare to charge a politician with campaign-finance crimes over hush-money payments to mistresses, one clear precedent stands out: the Justice Department’s prosecution in 2012 of John Edwards, the former North Carolina senator and 2004 Democratic vice-presidential nominee, over similar payments to hide a pregnant mistress while he was running for president in 2008.
A potential indictment of Trump for conspiring in the illegal campaign transactions to which Cohen has pleaded guilty would look a lot like the charges prosecutors brought against Edwards. In both instances, law-enforcement officials have alleged elaborate and deceptive schemes to influence “an election from the shadows,” as prosecutors wrote in their sentencing memorandum Friday seeking a relatively harsh sentence for Cohen on several crimes.
Trump directed Cohen to arrange payments for Karen McDougal, a former Playboy model, and Stormy Daniels, a pornographic film actress, to buy their silence about alleged affairs with him “with the intent to influence the 2016 presidential election,” prosecutors wrote.
The potential crimes include unlawful contributions in excess of the $2,700 individual limit — a personal loan counts as a contribution, even if it is repaid. They also include failure to report the transactions and unlawful corporate contributions; the Trump Organization eventually repaid Cohen for the payment to Daniels, and a tabloid publisher allied with Trump bought McDougal’s story and killed it after Cohen promised repayment, according to prosecutors.
But the meaning of the Edwards precedent for Trump’s fate is complicated, legal experts said. Because that case ended with a mistrial on five charges and an acquittal on one, it shows the risk of charging a politician with campaign-finance crimes over hush-money payments to mistresses, in which it is unclear whether the transactions were about trying to win an election or trying to protect the candidate’s personal life.
Indeed, after prosecutors made their filing in the Cohen case, one of Trump’s private lawyers, Rudy Giuliani, pointed to the jury’s failure to convict Edwards in support of the notion that Trump does not face realistic legal jeopardy over the payments.
“The President is not implicated in campaign finance violations because based on Edwards case and others the payments are not campaign contributions,” Giuliani wrote on Twitter. “No responsible prosecutor would premise a criminal case on a questionable interpretation of the law.”
But even though Edwards was not convicted, his case does not help Trump, said Peter Zeidenberg, a former federal prosecutor in the Justice Department’s public integrity section.
While prosecutors ultimately failed to persuade a jury in that case, he said, it established that both the Justice Department and a federal judge had already endorsed the idea that hush-money payments to a candidate’s mistress can be prosecuted as campaign-finance crimes — something that should give Trump little comfort.
“As a prosecutor, you look at the jury results and that helps inform you, tactically, when you go forward again about trial strategies and likelihood of success and things like that,” he said. “But in terms of precedential value, what it shows is that the Department of Justice believes that this is a legally cognizable theory of prosecution, and a judge has agreed.”
The question, then, is whether prosecutors have more convincing factual evidence to present to a jury about Trump than they did in the case of Edwards. Legal experts pointed to several major differences.
For one thing, one of the payments to Edwards’ mistress took place as he was ending his candidacy, which further muddied how to interpret his motivation. By contrast, the payments to McDougal and Daniels came before the election.
For another, prosecutors in the Edwards case had little corroboration from other key figures in the transactions to explain their motivation. One of the supporters of Edwards who provided the funds, Fred Baron, had died, and the other, Bunny Mellon, was a 101-year-old recluse prosecutors did not seek to drag into the courtroom as a witness.
By contrast, a key figure in both of the Trump transactions, Cohen, is available as a witness and has already admitted his principal purpose in helping pay off the women was to “suppress the stories and thereby prevent them from influencing the election,” as the sentencing memo said.
Still, prosecutors themselves have accused Cohen of “a pattern of deception that permeated his professional life,” and Trump’s defense lawyers would certainly attack his credibility. Trump foreshadowed that strategy Monday. “Cohen just trying to get his sentence reduced,” he wrote on Twitter. “WITCH HUNT!”
Citing the Edwards mistrial, Hasen said that federal prosecutors would be reluctant to go forward with a similar case against Trump unless they had credible corroborating evidence, especially in documentary form, to back up their accusations about what Trump was thinking about his campaign, not his personal life, when he instructed Cohen to arrange the payments.
“We don’t know everything the prosecutors have, and it really depends on that,” he said. “We don’t know if this is the sum total.”
Any other evidence that prosecutors might have to buttress Cohen’s potential testimony remains unclear. But Cohen has released a recording of a phone call in which he and Trump discussed the payment to McDougal, and the sentencing memorandum refers to other recordings of meetings and conversations that Cohen secretly made related to the payments, without providing details.
As for Trump’s political future, the new revelations did little to shift the calculus on Capitol Hill.
“These guys were all new to this at the time,” Sen. John Thune of South Dakota, the No. 3 Senate Republican, said of the Trump campaign team. “Most of us have made mistakes when it comes to campaign finance issues. In many cases, campaigns end up paying fines and penalties.”
Sen. Charles E. Grassley of Iowa, the chairman of the Judiciary Committee, similarly dismissed questions about the matter by saying prosecutors were relying on a “liar.”
Some Republicans privately held out the possibility that the forecast could worsen but said they did not view the new information about possible violations of campaign finance laws as likely to make much of a political impact on Trump, at least in the short term.
Even the incoming chairman of the House Judiciary Committee, Rep. Jerrold Nadler, D-N.Y., has said that election finance crimes by Trump would be an impeachable offense in theory but alone might not be “serious enough.”
Still, prosecutors could also wait and charge Trump with conspiracy after he leaves the presidency. If he were to lose re-election in 2020, the statute of limitations will not have expired by January 2021 when he would leave office.