The president is running out of alibis.
On Wednesday, Donald Trump’s former attorney and fixer, Michael Cohen, was sentenced to three years in prison for tax evasion, financial fraud, and violating campaign-finance laws in accordance with facilitating almost $300,000 in hush-money payments he made to women who said they had affairs with the president. Cohen, prosecutors said, “made or caused both of these payments in order to influence the 2016 election and did so in coordination with one or more members of the campaign.”
Separately, the U.S. attorney’s office for the Southern District of New York announced that it had reached a non-prosecution agreement with American Media Inc., which owns the National Enquirer. AMI acknowledged as part of that agreement that it deliberately bought the rights to a story from a woman who said she had a relationship with Trump “to suppress the woman’s story so as to prevent it from influencing the election.”
“Both Cohen and AMI are admitting that the hush-money payments were made for the purpose of influencing the election,” said Brendan Fischer of the Campaign Legal Center. “The president might claim that Cohen is a liar, but now Cohen’s account has been corroborated by other individuals close to Trump.”
With Cohen and AMI stating explicitly that they acted in concert to shield Trump from damaging information, the president is running out of explanations for his role in what looks increasingly like a conspiracy to violate campaign-finance laws. Although such violations are typically civil, they become criminal violations when done “knowingly and willfully” in defiance of the law. Cohen’s and AMI’s admissions also make it hard for the president to claim that the deception was not politically motivated—say, that Trump was simply trying to hide infidelity from his wife. And the non-prosecution agreement with AMI also suggests that investigators could still be in pursuit of another, bigger target.
“Together with the statements in the Cohen sentencing pleadings and in court, that suggests a potential broader conspiracy to violate campaign-finance laws that extends beyond Cohen to people at AMI and others in the campaign, possibly including the president himself,” said Randall Eliason, a law professor at George Washington University and a former U.S. attorney. “The agreement also says AMI has provided substantial cooperation, so any communications, emails, or other documents or evidence related to any coordinated action with the campaign has undoubtedly been turned over to prosecutors, which also would be very helpful in building a broader conspiracy case.”
There’s a pattern of deception associated with the payments. At first, the president’s allies denied both knowledge of the affairs and the payments outright. Later, they insisted that Cohen was paid a monthly retainer, and acted without the president’s guidance. Before Cohen first indicated he would cooperate with authorities, Trump’s defense counsel Rudy Giuliani told cable-news viewers that Cohen “did his job” by dispensing hush-money payments to women who said they had had affairs with the president. “Imagine if that came out on October 15, 2016, in the middle of the last debate with Hillary Clinton,” Giuliani said on Fox News in May.
After Cohen flipped and said he’d acted at the behest of the president, implicating him in a felony, Trump and his allies attacked Cohen’s credibility and called him a liar. Now he is insisting the payments were “a simple private transaction,” a claim contradicted by both Cohen’s and AMI’s admissions that they acted to influence the 2016 campaign. Most recently, the president and his allies have taken to arguing that, like the fine that the 2008 Obama campaign paid for excess contributions, this is nothing more than a civil violation.
“There is no comparison. Obama’s campaign paid a fine for a series of technical and reporting violations, like missing deadlines and failing to promptly refund excess contributions. Those kinds of errors are common for a high-profile campaign handling thousands of contributions and filing hundreds of pages of reports,” said Fischer. “There is no evidence that the Obama campaign sought to deceive voters about their funding or spending. When the errors were identified, the Obama campaign corrected them.”
Fischer said that the effort to hide the transactions is a crucial difference. “Trump and Cohen, in contrast, deliberately routed the Stormy Daniels hush money through a shell corporation for the purpose of evading detection,” Fischer said. “The failure to report the transaction as a campaign expenditure was not an oversight; it was the goal.”
The “knowing and willful” standard for felony campaign-finance violations provides a loophole in enforcement large enough to drive a parade of Mack trucks through. But in this case, there’s a large and growing body of evidence that the violation was deliberate. According to prosecutors, Cohen lied to obtain the funds necessary for the payments. He was reimbursed by the Trump Organization, which falsely labeled them “legal expenses.” Prosecutors have said that Cohen “acted in coordination with and at the direction of” Trump, and that Cohen “coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments.”
While state of mind is difficult to determine, people do not typically go to great lengths to hide conduct they believe is legal.
With AMI, Cohen, and, reportedly, the Trump Organization’s chief financial officer, Allen Weisselberg, cooperating with authorities, the lingering question is who else federal investigators are after.
“It seems unlikely that Cohen was the sole and primary actor here, so I think it’s likely we will see additional charges of some sort related to the campaign-finance violations,” said Eliason.