Hush money, the president, and the law: a primer

All eyes were on President Trump’s former personal lawyer, Michael Cohen, as he stood before a federal judge in New York last week and pleaded guilty to arranging “hush money” payments for two women to cover up extramarital affairs they’d allegedly had a decade ago with Mr. Trump. Mr. Cohen told the judge he was working “under the direction and coordination” of candidate Trump, and his accusation has raised new questions about Trump’s own vulnerability to ongoing investigations.

Q: Since Cohen admitted in open court that he violated campaign finance laws, does that mean that Trump must be guilty as well?

Not necessarily. To make a case against Trump, prosecutors would have to advance an interpretation of campaign finance law that is far more expansive than has been embraced by members of the Federal Election Commission (FEC). No federal jury has ever convicted anyone under such an expansive reading of campaign finance law, and election law experts are divided over the potential success of such an approach.

Q: Have prosecutors ever charged a candidate under similar circumstances?

In 2011, the Justice Department brought charges against former Democratic presidential candidate John Edwards for allegedly receiving and spending nearly $1 million from two of his supporters to pay expenses to hide his mistress and their child from the public during the run-up to the 2008 election season. FEC officials did not view the Edwards arrangement as a campaign finance violation. Justice Department prosecutors disagreed and filed criminal charges.

Mr. Edwards’ attorney argued at trial that the payments were intended to hide the existence of the mistress and the baby from the candidate’s wife, who was dying of cancer. Ultimately, a jury acquitted Edwards of one charge and deadlocked on five others.

Q: Trump is caught on tape discussing possible payments to buy the silence of the two women who were alleging past affairs. Isn’t that the equivalent of a smoking gun?

Cohen pleaded guilty to helping to structure hush-money payments to the women, including a $130,000 payment to former adult film actress Stormy Daniels. The charge in Cohen’s case was that the $130,000 was an illegal campaign contribution by Cohen to Trump in excess of the $2,700 limit on individual contributions.

Federal documents filed in the Cohen case show that Cohen was later paid back by Trump. It was done through monthly checks identified as payments of a retainer to the lawyer.

Unlike the Edwards case, where two Edwards campaign contributors put up money to help hide the mistress and baby, Trump used his own funds to pay for the Daniels non-disclosure agreement. As a self-funded candidate, Trump was free to spend as much of his own money as he liked on his candidacy. So Trump’s payments to Cohen cannot be classified as campaign contributions under campaign finance law.

Q: Aren’t self-funding candidates required to disclose how they spend money to advance their candidacy?

Yes. This is likely where the rubber would meet the road in any charges against Trump of campaign finance violations. Trump did not disclose the hush money to the FEC. (Of course, this would have been self-defeating, since he wanted to keep the arrangement confidential.)

At issue, if such a case was brought, would be whether the hush-money arrangement was a personal expense – which would not have to be reported to the FEC – or was instead an effort to advance Trump’s candidacy, which must be reported.

News of alleged extramarital affairs with an adult film actress and a former Playboy model bursting into public view in the final weeks of the election might have destroyed the Trump candidacy.

But there were substantial personal reasons for the hush money as well. Regardless of its impact on the election, public disclosure could have undermined his marriage, subjected his young son and other family members to embarrassment, and sullied his trademark-protected corporate name.

If the purpose of the hush money was both personal and campaign-related, the underlying case may not be strong enough to support prosecution, according to some campaign finance experts.   

Q: Even if prosecutors can build a solid case implicating Trump in violations of campaign finance law, would they indict a sitting president and put him on trial?

Probably not. The Department of Justice has a decades-long policy against indicting a sitting president. It dates from the administration of President Richard Nixon in the 1970s, and has been maintained and upheld over the years. It is possible that the Justice Department could change its policy, but there is no indication that it is inclined to do so.

Q: If a sitting president won’t be charged with a crime, how can a president be held accountable for high crimes or other violations of the public trust? 

The Constitution provides for impeachment. A majority vote in the House of Representatives is the equivalent of returning an indictment. Conviction and removal from office requires the affirmative vote of two-thirds of the members of the US Senate. 

Given the prospect that Republicans appear likely to maintain their majority in the Senate in upcoming midterm elections, as a matter of basic math, even if a Democratic-controlled House voted to impeach Trump, his removal from office appears extremely remote.