Trump, Cohen, and a "Criminal Violation" of US Law

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“In the 48 hours after Cohen's testimony, Trump repeatedly shouted in public statements and on Twitter, "NO COLLUSION! WITCH HUNT!" But after this week, the cracks in his all-caps barrier are widening.”  


On August 21, Donald Trump's former long-time lawyer and fixer Michael Cohen set off the latest shock wave in the political earthquake around Trump - and this one has criminal implications for his one-time boss. 

Pleading guilty to eight charges of financial crimes, carrying a potential of 65 years in prison, Cohen implicated Trump on two of the charges: a $130,000 payoff to porn star Stephanie Clifford, a.k.a. Stormy Daniels, and $150,000 to former Playboy model Karin McDougal, shortly before the 2016 Presidential vote.

Clifford and McDougal claimed sexual encounters with Trump in 2006, just over a year after Trump married Melania Knaus and months after the birth of their son Barron. Cohen delivered "hush money" to Clifford less than two weeks before the November 2016 ballot. McDougal was ostensibly paid via the US tabloid National Enquirer for the rights to her account, only for the paper's CEO - a good friend of Trump - to bury and effectively kill her story.

Trump initially denied any knowledge of the pay-offs. When more information about them was revealed last year, he said he knew of them but only well after the election. Then, confronted with a document that he had given money to Cohen for the payoffs, he admitted the reimbursement but repeated that it was months after the vote.

Even on Wednesday, in the wake not only of Cohen's testimony but of an audio recording from October 2017 in which he and his then-lawyer discussed the payoffs, Trump was insisting that he had no idea in advance of the election - and, anyway, that he couldn't have violated the law because the payment was from his personal account and not campaign funds, and, anyway, because "campaign finance violations...are not a crime".

So is Trump right to protest his innocence?

Not quite. In its case against Cohen, the Justice Department said the "hush money" --- to shield Trump from damaging allegations during the campaign - constituted unreported contributions which sought to influence the outcome of the election.

Defined as such, Cohen's $280,000 in total to Clifford and McDougal is well above the $2,700 limit for a donation assisting a Presidential campaign. Each violation above $25,000 is a felony with a maximum prison sentence of five years, as well as a fine of up to $250,000.

Trump could try to get around the legislation by saying that, by reimbursing the lawyer, he was simply putting his own money into his campaign. But then he runs into another problem: any payment to influence an electoral outcome - whether or not it comes from a candidate or an intermediary - is a criminal violation. (In a much broader sense, this is also part of the investigation of possible conspiracy between the Trump campaign and Russian officials.)

Speaking after Cohen's court hearing, his lawyer Lanny Davis summarized the challenge that Trump faces:

“My client stood up and testified under oath that Donald Trump directed him to commit a crime by making payments to two women for the principal purpose of influencing an election. If those payments were a crime for Michael Cohen, then why wouldn’t they be a crime for Donald Trump?”

The multiple layers of assertion by Trump and his allies, such as celebrity lawyer Alan Dershowitz, do not sweep away this question.  

And there is far more to come. Not only is Cohen likely to provide more information about the payoffs, his attorney Davis said Trump's ex-lawyer is likely to be speaking with the team of Special Counsel Robert Mueller about the Trump-Russia links. Subjects are likely to include any knowledge that Trump had about the June 2016 meeting between his top advisors and three Kremlin-linked envoys, set up to discuss the provision and dissemination of "dirt" on Democratic nominee Hillary Clinton.

In the 48 hours after Cohen's testimony, Trump repeatedly shouted in public statements and on Twitter, "NO COLLUSION! WITCH HUNT!" But after this week, the cracks in his all-caps barrier are widening.