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Terry H. Schwadron

Nov. 18, 2018

Last week’s disclosures in the Wall Street Journal about the role that President Trump took in apparently arranging hush-money payments before the 2016 election to two women to keep quiet about sex with him has opened the door to campaign finance law violations.

But with the appointment of an acting Atty. Gen. Matthew G. Whitaker, legal or not, as an aggressive defender of the president, it is not clear that anyone is walking through the door. However dangerous (or not) an action against the president based on these disclosures, It’s a case with pretty limited, if noxious, legal liabilities.

If pursued to some kind of verdict, Donald Trump, the man, as opposed to Trumpism, the destructive, would-be populism, would be under the gun.

The southern district of New York office of the U.S. attorney has been handling the case, but actions involving the president clearly would require aligning decision-making with the top officers in the Justice Department. If Whitaker is bent on killing off efforts to besmirch the president, we cannot expect that this case will proceed in normal time.

However, it is sitting there as red meat for an incoming Democratic House. It could not be good news for the White House in any event.

The news of those disclosures, based on a detailed, 80-page draft indictment against Michael Cohen as Trump’s bag man, was that Trump was involved in or briefed on nearly every step of the payments that were made to former Playboy model Karen McDougal and adult film actress Stormy Daniels to keep quiet about their alleged affairs with Trump.

The Journal report adds new details to Cohen’s comments in court when he pleaded guilty in August, in which he said the payments to the women were coordinated with Trump, noting that the U.S. Attorney’s office in Manhattan gathered information about Trump’s participation.

After negotiation between his lawyers and prosecutors, Cohen actually pleaded charges resulting from an edited 22-page indictment in which Cohen admitted to payments that were “in coordination and at the direction of a candidate for federal office” Trump. Because of the guilty pleas, prosecutors never filed the indictment.

The transactions may have violated campaign finance laws. Apparently, what prosecutors would have to show to make a technical violation about financial into a criminal matter is evidence of intent. The Journal article seemed to provide exactly that.

According to the new details, Trump met in August, 2015, at Trump Tower with David Pecker, the CEO of American Media, who offered to use the National Enquirer to buy the silence of women who might try to publicize sexual affairs with Trump. The criminal filing from prosecutors described the meeting in vague terms, but didn’t go into detail.

During the campaign, Trump asked Pecker to stop McDougal from telling her story, and Pecker’s company paid $150,000 to the former Playboy model. Then in October 2016, Cohen paid $130,000 to Daniels himself to keep her from going public about an affair with Trump.

The President lawyers declined to comment. Trump has previously denied both affairs.

Michael Avenatti, the lawyer representing Daniels, said the new developments vindicated his client, and American Media declined to comment. (Of course, Avanatti has new problems of his own, stemming from a domestic violence charge in California.) Still, Cohen and Pecker have been reported to have talked extensively with Special Counsel Robert Mueller III.And lots of supporting documents were obtained in FBI raids of Cohen’s home, office and hotel room last April.

According to the report, prosecutors have obtained evidence showing then-candidate Trump’s role in transactions that allegedly violated campaign finance law. Some of that evidence has come through the cooperation of Trump’s former fixer, Michael Cohen and in documents obtained in FBI raids of Cohen’s home, office and hotel room last April.

The Journal article also suggest that Trump was kept up to speed about developments in the McDougal situation, which included AMI first refusing to buy her story for that much because she didn’t have documents backing it up, but then offering her the $150,000 contract because she was also in talks with ABC News about coming forward. And, the article said that Pecker studied campaign finance law as his company negotiated buying the rights to McDougal’s story.

It was Pecker who called off an agreement discussed by Cohen and Trump to buy the rights to McDougal story from AMI, the Journal reported. Pecker, who was advised by his attorney not to go through with the deal, told Cohen to tear up the agreement, although he did not, according to the Wall Street Journal.

Unlike all other topics covered by the Special Counsel investigation, obviously requiring details about the details, these actions seem pretty discrete. Indeed, it is hard to see what else needs to happen for this question to proceed to a conclusion.

Please, let’s bring it on.


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