Was President Donald Trump trying to hide the alleged affair with Stormy Daniels from Melania, or from the voters? The answer could determine whether the payment to Daniels, the stage name for porn actor Stephanie Clifford, broke campaign finance laws.
Anyone is free to have affairs with porn stars and pay them for silence, but Cohen’s $130,000 payment to Daniels — later reimbursed by Trump — just 12 days before the 2016 election arguably had a whole lot to do with winning the election, meaning the campaign would have been required to report it.
Until Wednesday, Trump had insisted he knew nothing about the Daniels payment. Then his new lawyer, former New York City Mayor Rudy Giuliani, went on Fox News Wednesday night and revealed that Trump reimbursed Cohen for the Daniels payment. Then, Giuliani went back on Fox News Thursday morning and admitted the payment to Daniels was motivated, at least in part, by the election.
"Imagine if that came out on October 15th, 2016, in the middle of the last debate with Hillary Clinton,” Giuliani said. White House Press Secretary Sarah Sanders declined to comment on Giuliani’s remark Thursday. “The first awareness I had was during the interview last night,” she said.
If they are looking for a motive in making the payment, federal prosecutors may already have the smoking gun, if there is one; they seized thousands of documents and at least a dozen electronic devices from Cohen last month and are looking into campaign finance violations and bank fraud.
If there is evidence in Cohen’s files that the payment and reimbursement were made solely because of the election, that’s trouble for Trump. A loan is considered a contribution under Federal Election Commission rules, and can’t exceed $2,700. So Trump could be fined by the FEC for accepting an excessive contribution and failing to report it. Those violations become criminal if prosecutors can prove Cohen and Trump knew they were breaking the law when they made the payment and reimbursement.
Whether Trump is on the hook or not depends on how strong the link is between the payment and the election.
“There would have to be more than just that it was done close in time to the election,” said former Democratic FEC chairwoman Ann Ravel. “If Trump said, ‘Hey you know I’m worried about Melania finding out about this now, so let’s get the money,’ as opposed to, ‘This is a bad time in the campaign.’”
Former FEC Republican chairman Brad Smith is concerned that if the Daniels payment is considered election-related, the law could be stretched to include all kinds of personal payments.
“If Donald Trump goes and buys groceries, he doesn’t have to report that, even though he has to eat on the campaign trail,” Smith said. “It’s not illegal to have an affair, not illegal to pay blackmail, and there are lots of reasons he would have done this. If there are other reasons to do it, it’s not a campaign expenditure.”
But if the payment was purely for personal reasons, Trump may still be in trouble. Candidates are required to disclose their personal financial information, including any outstanding debts, like the money he owed Cohen for the Daniels payment.
“Either this is campaign related, or this was a personal matter in which Trump failed to report a six figure debt owed to Michael Cohen,” said Director of FED Reform at the Campaign Legal Center Brendan Fisher. “He’s stuck in a little bit of a box.”
The fines associated with these potential violations are minimal compared to the damage an alleged affair could have been to an aspiring president, which was likely a calculation made by the Trump campaign legal team.
“Most lawyers will say, ‘Eh, it’s like a slap on the hand’, and say, ‘Why worry about it?’” Ravel said.
An April Quinnipiac University poll found the majority of Americans, 73 percent, don’t think the affair is an “important issue.” If Trump failed to correctly report the hush money, that is likely not to matter, either.
Cover image: Adult film actress Stormy Daniels speaks outside federal court, Monday, April 16, 2018, in New York. (AP Photo/Mary Altaffer)