- The Washington Times - Thursday, August 23, 2018

The legality of President Trump’s hush money to an adult film actress and a former Playboy model will come down to whether he made the payments to hide the story of his alleged infidelity from voters or from his wife.

Mr. Trump says he used his own money for the payments, which former lawyer Michael Cohen says went to Stormy Daniels and Karen McDougal in the weeks ahead of the 2016 presidential election.

If the payments were done to further his campaign, they should have been reported to the Federal Election Commission, experts said. But if Mr. Trump was acting mostly out of personal motives, then the payments did not necessarily need to be reported.

“The law on what exactly is a campaign contribution, it’s kind of murky here,” said Gary Rose, a political science professor at Sacred Heart University.

Mr. Trump may benefit from that murkiness.



“Lots of laws hinge on what is the mind of the person, and that’s always difficult or impossible to find out,” said Douglas Spencer, a law professor at the University of Connecticut.

Cohen, the president’s former lawyer, pleaded guilty this week to charges of fraud and violating campaign laws. In his plea deal he said he was directed to make illegal payments at the discretion of an unnamed candidate, an apparent reference to Mr. Trump.

Cohen made clear his own motivation was to benefit Mr. Trump’s 2016 presidential campaign, and he suggested Mr. Trump’s intent was the same.

Adding to Mr. Trump’s potential legal troubles was a reported immunity deal Thursday between National Enquirer boss and longtime Trump friend David Pecker and federal prosecutors.

The Enquirer was reportedly the conduit for hush money paid to Ms. McDougal, buying rights to her story that she had a sexual encounter with Mr. Trump, but never publishing the story. The Wall Street Journal reported the Pecker deal.

The Enquirer didn’t respond to a request for comment.

Mr. Trump told Fox News in an interview that aired Thursday that he only learned of the payments after Mr. Cohen made them. And he said the money didn’t come from his campaign.

“In fact, my first question when I heard about it was, ‘Did they come out of the campaign?’ because that could be a little dicey. And they didn’t come out of the campaign,” the president said.

Proving Mr. Trump’s intent behind the payments will be a hurdle for prosecutors if they are looking to make a case against the president.

“If the FBI in their raids have audio of Cohen and Trump talking to each other where Trump says I’m really worried about how voters are going to react to this, then that will be damning to him,” Mr. Spencer said.

Yet Mr. Trump’s history of making payments to settle legal disputes or requiring confidentiality could help him.

Bradley Smith, a professor at Capital University Law School and former member of the Federal Election Commission, said the payments to the women are similar to settlements Mr. Trump could have made in relation to lawsuits against his Trump University.

“He may be paying it because he is running, but the obligation exists independent of him running for office,” Mr. Smith said.

Election law scholars said Cohen likely agreed to plead guilty because of the six criminal charges he was facing relating to tax evasion, suggesting he was willing to say whatever prosecutors wanted him to say.

He is facing three to five years in prison, while former Trump campaign manager Paul Manafort, who was convicted this week on eight charges of bank fraud and tax fraud, is facing 80 years.

Cohen got a hell of a good deal,” said Hans von Spakovsky, a legal fellow at the Heritage Foundation and a former member of the Federal Election Commission.

He said it’s highly unlikely the government could prove Mr. Trump’s payments to the women are purely campaign-related.

It’s also unlikely the president would face a case while he’s in office. The Justice Department’s policy under both Republican and Democratic administrations has been to delay indictment until after a president leaves office.

Mr. Spencer said Federal Election Commission penalties are often settled years after the alleged violation.

“If the FEC operates as it normally does, it is going to take four or five years,” Mr. Spencer said.

Mr. Rose, though, predicted special counsel Robert Mueller will lay out evidence in his final report to Congress, letting lawmakers decide whether the potential campaign fraud amounts to an impeachable offense.

“You can have illegal contributions, but that doesn’t necessarily make it impeachable,” Mr. Rose said. “It often results in a fine and then that is it and everybody goes on their way.”

But because it’s Mr. Trump, Mr. Rose said this “makes it a much more partisan and political process because of who it is.”

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