Feds closing in on Michael Cohen over Stormy payoff?

A leftover from yesterday but newsy enough to be worth flagging now. There are two lingering mysteries about Cohen’s hush-money payout to Stormy Daniels in October 2016. One, obviously, is what Trump knew and when he knew it. Did he authorize the payment or did Cohen have some sort of standing authorization to deal with former mistresses while keeping Trump in the dark, the better for him to maintain plausible deniability later? The answer is important because it’ll bear on whether Trump is guilty of a campaign finance violation. If Cohen handled the matter without any input from the boss then he’s the one guilty of the violation, not Trump. (Although Trump’s reimbursement of him after the fact, which Rudy Giuliani laughably claims was done via some “retainer” agreement, further complicates things.)

That brings us to the second, more basic mystery. Was the hush-money payout a campaign contribution? There’s no campaign finance violation if there’s no campaign contribution. In order for the payoff to be deemed a campaign contribution, the feds would need to show that it was made for the purpose of influencing an election. And needless to say, not all hush money paid to mistresses fits that bill. John Edwards avoided conviction a few years ago because, although prosecutors could prove that his mistress received hush money from campaign donors, they couldn’t prove that the motivation was to help Edwards’s election chances. It may have been simply to spare his wife and kids from the public embarrassment of a sex scandal. That’s what Cohen and maybe Trump will be left arguing if the FEC comes after them — the Stormy payout had nothing to do with the campaign, it was just a way of silencing her before she went public and upset Trump’s wife and children.

Intent, in other words, is the key. Why was the payment made? That’s where yesterday’s new WSJ story comes in.

Michael Cohen initially balked at the idea of buying the silence of a former adult-film star who says she had sex with Donald Trump, but he did an about-face after a video of Trump talking about groping women became public in October 2016.

A day after the recording surfaced of outtakes of Trump speaking to a host of NBC’s “Access Hollywood,” Cohen, then Trump’s senior counsel, told a representative for the performer that he was open to a deal, according to a person familiar with the conversation.

Within days, Stormy Daniels, whose given name is Stephanie Clifford, signed a nondisclosure agreement that provided her $130,000 for her silence. Cohen had resisted paying Clifford when it was floated in September 2016, the person said.

Think about this. By October 2016, Cohen had known of the relationship between Trump and Daniels for at least five years. After Stormy told all to InTouch magazine in 2011, Cohen reportedly emailed the magazine’s counsel in October of that year and threatened to sue if they published it. InTouch apparently concluded that a dalliance between a porn star and the “Apprentice” guy wasn’t so juicy as to be worth risking litigation, so they shoved it in a drawer. (Why they didn’t pull it out of the drawer and publish it in the summer of 2016 after he’d become the GOP nominee is another major mystery.) So Cohen had known since 2011 but never bothered to pay Stormy to keep quiet. Then he learned in September 2016 that she was shopping her story to the media, hoping to capitalize in national interest in candidate Trump.

And even then, he passed on paying her off.

Less than a month later, the day after the “Access Hollywood” tape dropped and put Trump’s candidacy in momentary jeopardy, he suddenly had a change of heart. After years of taking a “Who cares?” view of the Trump/Stormy affair, now he was interested in a deal. How come?

Given the opportunities he’d had to hush Daniels up before then, one as recently as the preceding month, what conceivable argument is there that he paid her off merely to spare Melania Trump from hurt feelings rather than to protect Trump’s campaign from another sordid accusation following hot on the heels of the “Access Hollywood” tape? If Cohen cared about sparing Mrs. Trump, he would have cut Stormy a check in 2011, if not sooner. And if not by then, most definitely by September 2016.

If the Journal’s sources (Cohen?) are telling the truth about the timeline then the second mystery appears to have been solved. But if in fact this is coming from Cohen, you’re left to wonder why he would be whispering about it to the media. The timeline strongly implies that the payoff was indeed an unreported campaign contribution — which points directly at Cohen. The only reason he might feel safe in confirming the timeline, it seems to me, is if he has evidence that the Trump knew all along. If he acted at Trump’s behest with Daniels then presumably the campaign finance violation here would belong to Trump, by failing to report a contribution to his own campaign in the form of a payoff with Cohen acting as middleman. (If Cohen acted independently of Trump in making the payoff then he’d be the one who violated campaign finance regs by making an unreported loan to Trump’s campaign.) Does the Journal story mean that Cohen has proof that Trump was in on the payment?

Exit quotation via Rudy Giuliani: “I can’t keep track of Michael’s stories but if you believe him I have a beautiful bridge in lower Manhattan to sell you.”

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