President Donald Trump began his week by trying to downplay illegal hush payments to women made late in the 2016 presidential campaign — ones that federal prosecutors now say he directed and coordinated — as a mere “simple private transaction.”
“‘Democrats can’t find a Smocking Gun tying the Trump campaign to Russia after James Comey’s testimony. No Smocking Gun...No Collusion.’ @FoxNews” Trump tweeted (typos his). “That’s because there was NO COLLUSION. So now the Dems go to a simple private transaction, wrongly call it a campaign contribution,...”
Fourteen minutes later, Trump finished his thought, writing in a second tweet, “....which it was not (but even if it was, it is only a CIVIL CASE, like Obama’s — but it was done correctly by a lawyer and there would not even be a fine. Lawyer’s liability if he made a mistake, not me). Cohen just trying to get his sentence reduced. WITCH HUNT!”
In McDougal’s case, the rights to her story were purchased in August 2016 for $150,000 by American Media Inc., the parent company of the National Enquirer, whose publisher is a longtime friend of Trump’s. After paying McDougal, the Enquirer did nothing with her story — a practice in the tabloid industry known as “catch and kill.”
Daniels was paid $130,000 in October 2016 as part of a nondisclosure agreement. In August, Trump’s longtime personal lawyer, Michael Cohen, pleaded guilty to campaign finance violations related to the payments and said in federal court that he made them at Trump’s direction.
Prosecutors affirmed Cohen’s account in a court filing last Friday, alleging that “with respect to both payments, [Cohen] acted in coordination and at the direction of Individual-1 [Trump]. As a result of Cohen’s actions, neither woman spoke to the press prior to the election.”
Using illegal payments to sweep scandals under the rug during a presidential campaign isn’t a “simple private transaction”
If Trump hadn’t been running for president, his position that hush payments made on his behalf were a “simple private transaction” would make sense. But the payments ended up allowing Trump to sweep two potentially damaging sex scandals under the rug during a crucial period of the campaign in which his treatment of women was under scrutiny because of the Access Hollywood tape and a string of sexual assault accusations.
It is illegal to donate more than $2,700 to a candidate in a general election. The McDougal and Daniels payments far exceeded that amount and were aimed at helping Trump’s campaign, and therefore constituted illegal payments, according to federal prosecutors. Cohen has already pleaded guilty to campaign finance violations for his role in orchestrated them, and prosecutors have now alleged in public court documents that Trump directed Cohen to commit those crimes.
While the extent of Trump’s criminal exposure as it pertains to the payments remains unclear — for one, we don’t know if Trump knowingly violated the law — what is clear is that if Trump did indeed direct them, he subsequently lied about it.
Asked by a reporter on April 5 if he knew about the payment to Daniels, Trump unequivocally denied it. And in July, Cohen provided CNN with a secretly recorded tape of a September 2016 conversation in which Trump can be heard discussing details of the payment to McDougal. That recording contradicted claims made by Trump’s campaign just days before the 2016 election that they had “no knowledge” of American Media Inc’s deal with McDougal.
A false equivalency
In his Monday morning tweets, Trump also tried to minimize the controversy by comparing Cohen’s crimes with a $375,000 fine paid by President Barack Obama’s campaign in 2008 to the Federal Election Commission for missing filings deadlines for disclosing large donations and other violations. It isn’t the first time Trump has made that comparison.
Michael Cohen plead guilty to two counts of campaign finance violations that are not a crime. President Obama had a big campaign finance violation and it was easily settled!— Donald J. Trump (@realDonaldTrump) August 22, 2018
But Trump’s spin is a false equivalency. As NBC News details, Obama’s violations were technical in nature, while Cohen’s are criminal violations.
[T]here is no comparison, experts told NBC News. Cohen’s admitted campaign finance law violations are indeed a crime, and they are not similar to the campaign finance violations made by Obama’s 2008 campaign. Election law experts said that more minor violations are treated as regulatory or civil matters, while egregious and willful campaign finance violations are treated as criminal acts.
Mitchell Epner, a former federal prosecutor who is now of counsel at Rottenberg Lipman Rich P.C., told NBC News that Obama’s fine stemmed from “a small, technical paperwork error that people who were trying to get it right might make,” while what Cohen admitted doing “is absolutely a crime.”
“They would be impeachable offenses”
While Trump tries to downplay the crimes his longtime lawyer and federal prosecutors have implicated him in, Rep. Jerry Nadler (D-NY) said on Sunday that he thinks what Trump did is an impeachable offense.
Appearing on CNN’s State of the Union, Nadler said that while Trump’s roles in directing Cohen to make payments to McDougal and Daniels are “certainly” impeachable offenses “because, even though they were committed before the president became president, they were committed in the service of fraudulently obtaining the office.”
Nadler added, however, that the question of what constitutes an impeachable offense and whether Trump should actually be impeached for these specific misdeeds in question are different matters.
“They would be impeachable offenses. Whether they’re important enough to justify an impeachment is a different question,” Nadler said.