This clip is kicking around social media today as evidence, supposedly, that Trump knew that failing to report the payoffs to Stormy Daniels and Karen McDougal to the FEC was against the law. I don’t know why, though. Seems to me it helps him more than hurts him.
Trouble for Trump
For campaign finance crimes, need to prove he “knew what the law forbade.”
Here’s President Trump in 2012 showing he knows about the law that applied to John Edwards.
— Ryan Goodman (@rgoodlaw) December 14, 2018
The supposition is that because he was listening to “a lot of very good lawyers” on the matter, he must have gleaned a basic sense of what the law requires of candidates. That’s a pure assumption, though; who knows how in-depth they got in explaining it to him. Maybe what they told him was of the “take it from me” variety. (Or maybe, true to form, he’s just casually lying here and didn’t talk to any lawyers at all.) The key point is that these mystery lawyers allegedly told him that the feds didn’t have a good case against Edwards. He doesn’t elaborate as to why, but probably his strongest defense — maybe his only defense — to conspiracy in the McDougal payoff right now is that such payoffs simply don’t qualify as campaign contributions to begin with. What he says here to Greta suggests that he might have believed that even back when Edwards was on trial. Smart lawyers told him that the feds’ case against Edwards was weak, ergo Trump concluded that there was nothing illegal about candidates paying off mistresses and keeping it a secret. He may end up pointing back to this clip as proof that he was led to believe that Edwards was right and that the government was wrong in this debate.
Michael Cohen, David Pecker, and Allen Weisselberg will have something to say about the state of Trump’s knowledge and understanding as of 2016, though. And the fact remains that although the law on this point is unsettled, per Andy McCarthy, the court in the Edwards case refused to dismiss the charges on grounds that secret mistress payoffs can’t qualify as campaign contributions. Until an appellate court says otherwise, those payments need to be reported to the FEC. More from George “Mr. Kellyanne” Conway (and two co-authors):
Edwards repeatedly argued that the payments were not campaign contributions because they were not made exclusively to further his campaign. The judge rejected this argument as a matter of law, ruling that a payment to a candidate’s extramarital sexual partner is a campaign contribution if “one of” the reasons the payment is made is to influence the election.
As a legal matter, that aspect of the Edwards case is what matters now — and it’s damning for Trump. It provides a precedent that other courts could follow in any prosecution arising out of the hush-money schemes Trump paid: The president could face criminal charges for conspiring with Cohen to make the payments because the evidence shows the payments were made, at least in part, for campaign purposes. As for what the jury concluded in the Edwards case, there’s good reason to believe that the evidence in a criminal case against Trump would be much stronger.
There are (at least) three ways a court could go in deciding if a mistress payoff is a campaign expenditure. One is the approach that Trump and his fans have been touting, that an expense must be exclusively for campaign purposes to qualify. If it has any non-campaign purpose, like sparing the candidate’s family from personal humiliation, then it’s not a campaign expenditure and doesn’t need to be reported. Trump’s off the hook. The second approach would be the opposite, that so long as an expenditure has any campaign purpose, it must be reported. That’s how the judge in the Edwards case apparently viewed the matter. If the McDougal payoff was intended to influence the election then it must be disclosed even if it had a non-campaign purpose too. Although that rule would create headaches since pretty much anything a candidate spends money on (e.g., hair spray) has at least a small effect on his or her election chances.
So instead a court might take a third approach, examining whether the primary purpose of a payment was campaign- or non-campaign-related. One way to do that would be to ask: But for the fact that the candidate was running for office, would the payment have been made? Trump and his supporters would say sure, maybe even noting that he’s probably paid off other mistresses in the past. The more that paying hush money was a habit for him, the harder it is to argue that the campaign is what drove him to silence Stormy and McDougal.
The counter to that, though, is that he had many years to make a deal with both of them and yet each received their check only within the final few months of the 2016 campaign. Cohen also insists that it was the campaign that drove Trump to seek settlements with them. Plus, remember that Trump’s affairs with Daniels and McDougal were unusually embarrassing for him potentially given that each happened soon after his wife had given birth. Had the stories come out, the headline wouldn’t have been “Trump cheated,” it would have been “Trump cheated while missus was home with newborn.” And yet, despite how damaging that headline would have been even in his days as a TV star, he never paid off either woman until the last three months before Election Day. Where’s the evidence between 2006 and 2016 that Trump was so worried about his family finding out about Daniels and McDougal that he was willing to cut them a check to keep quiet? Is the fact that Michael Cohen allegedly leaned on In Touch magazine in 2011 not to publish Stormy’s story enough in itself to prove that Trump’s “primary” purpose in settling with her in 2016 was personal, not campaign-related?
Anyway, imagine the question about campaign contributions coming before the Supreme Court, with the four liberals ready to rule that secret mistress payoffs must be reported by candidates and Roberts, Thomas, and Alito ready to rule that they needn’t be. What do Gorsuch and Kavanaugh do?