//  5/8/18  //  In-Depth Analysis

(Cross-posted on Dorf on Law)

Whether Michael Cohen and/or Donald Trump violated federal campaign finance law in paying $130,000 of hush money to Stormy Daniels turns on whether that payment was "for the purpose of influencing any election for Federal office." If so, then it was a campaign contribution as defined by 52 U.S.C. § 30101(8)(A)(i). If the money was a gift from Cohen then it vastly exceeded the maximum individual campaign contribution. Cohen would be on the hook for making the contribution and Trump, if he knew about it, would be on the hook for accepting it. (A "loan" from Cohen would also count. It's right there in the statutory definition.) Meanwhile, if the money came from Trump, it would count as a campaign contribution to his own campaign that was exempt from the cap but still subject to the requirement of reporting, with which Trump clearly did not comply.

Trump, Rudy Giuliani, and others in Trump's orbit have said that no "campaign funds" were used to pay Daniels, by which they mean that no funds that were officially controlled by the campaign were used to pay Daniels. Presumably that's true. However, it's not relevant to the question of whether payment to Daniels herself counts as an illegal contribution. At this point, the campaign finance issue is quite straightforward: If the payment to Daniels was "for the purpose of influencing" the 2016 presidential election, then Cohen and/or Trump broke the law.

Sooo . . . were the payments for that purpose? Common sense says yes, but a recent essay by Stephen Weissman argues that the John Edwards case indicates maybe no. I think it's more complicated.

Let's begin with common sense. The nondisclosure agreement and payment to Daniels occurred on October 28, 2016, three weeks after the Access Hollywood recording surfaced and less than two weeks before the general election. As Giuliani himself said last week on FoxNews, had Daniels gone public with her allegations at that time, it could have affected the election's outcome.

To be sure, one might wonder how. Daniels alleges that she and Trump had a consensual affair, which, while hardly honorable personal behavior on Trump's part, is substantially less objectionable than the multiple credible allegations and Trump's own apparent boasting of his sexual assaults. It's hard to imagine that any voter who was willing to pull the lever for Trump despite the credible allegations of sexual assault would have been dissuaded by credible allegations of a consensual affair.

However, that's viewing the matter in hindsight. The Access Hollywood tape did seem to have some negative impact on Trump's polling in October 2016 and so it would have been reasonable for the Trump campaign or those who wanted to help it to think that the Daniels revelation would keep that story in the news and generally harm his already-slim-seeming chances. As it happens, the Daniels NDA was executed on the very same day that James Comey sent his infamous follow-up letter to Congress regarding Hillary Clinton's emails. Coincidence? Maybe not. Perhaps the Trump team knew that was coming, due to leaks from the NYC office of the FBI from officers alleged to be in league with, wait for it . . . Rudy Guiliani! If so, we might then imagine that knowing they were about to get some help from Comey, the Trumpers rushed to buy Stormy's silence so as to take maximum advantage.

In any event, whether or not Trump, Cohen, Giuliani, or anyone else in Trumpworld had knowledge of both the Daniels allegations and the then-impending Comey/Clinton nothingburger-disguised-as-a-bombshell, the timing of the Daniels NDA strongly supports an inference that the motive of Cohen and/or Trump in paying her was to influence the election.

Is it possible that neither Cohen nor Trump nor anyone else had the election in mind? Sure. Any celebrity who had an affair might respond to threatened publicity by paying hush money to avoid embarrassment to himself and his family. And Trump was notorious for demanding NDAs from people with any contact with him long before he entered politics. So it's possible that Daniels was motivated to tell her story by the political timing, but that the motives of Trump and Cohen in paying to silence her were personal. Of course, there's also the Karen McDougal lawsuit alleging that in 2016 she sold her story of her affair with Trump to the National Enquirer's parent company in what turned out to be a bid to bury it. Taken together, the Daniels and McDougal allegations make the timing look more political than personal.

Based on the evidence in public view, a jury could certainly find that Cohen and/or Trump made the payment to Daniels with the purpose of influencing the election, even though it would also be open to a jury to conclude that the motives were purely personal. Purpose tests work like that. They require the finder of fact to make inferences about motives based on behavior.

But wait, says Weissman. What about John Edwards? Readers may recall that while Edwards was running for the Democratic nomination for president in 2008 and his wife was battling cancer, he had an affair. Apparently with the knowledge of Edwards, two of his wealthy supporters paid for the support of his paramour and to keep the affair quiet. Edwards was later indicted for conspiring to violate and violating campaign finance laws. The case resulted in a hung jury, and the government did not retry Edwards.

Is that helpful to Trump and Cohen? Yes and no. As a predictor of how a jury might react to an indictment of Trump and/or Cohen, the Edwards case might suggest that prosecutors would have a difficult time persuading a jury that the payments to Daniels were a campaign contribution.

But the jury in a prosecution of Cohen or Trump (once out of office) would view different evidence and might reach a different conclusion. Although he doesn't come right out and say it, Weissman hints that the Edwards case is a kind of helpful precedent for Cohen and Trump. It isn't. A jury verdict or a hung jury in one case is not any kind of precedent for another case involving different defendants.

Indeed, to the extent that the Edwards case could be said to be any kind of precedent, it cuts against Cohen and Trump. The Edwards legal team pushed hard to have the case dismissed. They submitted to the Department of Justice a letter from two former Federal Election Commission chairs arguing that the payments should not be treated as campaign contributions even in a civil case, much less in a criminal case. The trial court judge found against Edwards on the legal question, allowing the case to go to trial. At the close of the trial, the judge instructed the jurors that they could find that the payment constituted a campaign contribution if it was "for the purpose of influencing an election. You will remember that the government does not have to prove that the sole or only purpose of the payments or expenditures was to influence the election. People rarely act with a single purpose in mind."

A legal ruling of a federal district court judge is not binding precedent in subsequent cases--and because the Edwards jury reached no verdict, there was no appeal. Thus, the Edwards case would not be binding on the key legal questions in a future case. But to the extent that it has predictive value, the Edwards case should be troubling for Cohen and Trump. The only federal judge ever to consider the question found that hush money paid to cover up an affair by a candidate for federal office can be the basis for a criminal prosecution for violating federal election law.


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