President Donald Trump has now been abandoned by two of his most powerful protectors, his longtime lawyer and the company that owns the National Enquirer tabloid, bringing a perilous investigation into his campaign one step closer to the Oval Office.
Both Michael Cohen and American Media Inc. now say they made hush money payments to a porn star and a Playboy Playmate for the purposes of helping his 2016 White House bid, a campaign finance violation. The women alleged affairs with Trump, and federal prosecutors say the payments were made at Trump’s direction.
The admissions by Cohen and AMI conflict with Trump’s own evolving explanations. Since the spring, Trump has gone from denying knowledge of any payments to saying they would have been private transactions that weren’t illegal.
On Twitter Thursday, Trump contended he “never directed” his former personal lawyer to break the law. He tweeted that Cohen “was a lawyer and he is supposed to know the law.”
Cohen pleaded guilty to campaign finance charges “in order to embarrass the president and get a much reduced prison sentence,” Trump tweeted. He said the charges were “unrelated to me.”
Though prosecutors have implicated Trump in a crime, they haven’t directly accused him of one, and it’s not clear that they could bring charges against a sitting president even if they want to because of Justice Department protocol.
Nonetheless, Trump’s changing explanations have clouded the public understanding of what occurred and are running head-on into facts agreed to by prosecutors, AMI and Cohen, who pleaded guilty to campaign finance violations and other crimes and was sentenced on Wednesday .
“You now have a second defendant or group of defendants saying that these payments were made for the primary purpose of influencing the election, and that it was done in coordination with Trump and his campaign,” said Rick Hasen, an election law expert at the University of California, Irvine.
Trump’s first explanation of the payment that would eventually help lead Cohen to a three-year prison sentence came at 35,000 feet over West Virginia.
Returning to Washington on Air Force One, Trump on April 6 for the first time answered questions about the reports of $130,000 in hush money paid to porn star Stormy Daniels, issuing a blanket denial to reporters while saying they would “have to ask Michael Cohen.”
Three days later, the FBI raided Cohen’s office, seizing records on topics including the payment to Daniels. Furious, Trump called the raid a “disgrace” and said the FBI “broke into” his lawyer’s office. He also tweeted that “Attorney-client privilege is dead!”
The raid was overseen by the U.S. attorney’s office in Manhattan and arose from a referral from special counsel Robert Mueller, who is investigating Russian election interference. At the time, Cohen said he took out a personal line of credit on his home to pay Daniels days before the 2016 election without Trump’s knowledge.
Later that month in a free-wheeling “Fox & Friends” interview, Trump acknowledged that Cohen represented him in the “crazy Stormy Daniels deal.”
In May, Trump and his attorneys began saying Cohen received a monthly retainer from which he made payments for nondisclosure agreements like the one with Daniels. In a series of tweets, Trump said those agreements are “very common among celebrities and people of wealth” and “this was a private agreement.”
People familiar with the investigation say Cohen secretly recorded Trump discussing a potential payment for former Playboy Playmate Karen McDougal two months before the election. On the tape, Cohen is heard saying that he needed to start a company “for the transfer of all of that info regarding our friend David,” a possible reference to David Pecker, Trump’s friend and president of AMI.
When Cohen began to discuss financing, Trump interrupted him and asked, “What financing?”
“We’ll have to pay,” Cohen responded.
Prosecutors announced Wednesday that AMI acknowledged making one of those payments “in concert” with the Trump campaign to protect him from a story that could have hurt his candidacy. The company avoided prosecution under a deal with prosecutors.
In August, Cohen pleaded guilty to campaign finance violations and other charges, saying he and Trump arranged the payment of hush money to Daniels and McDougal to influence the election. That next day, Trump argued that making the payments wasn’t a crime and that the matter was a civil dispute, then took a swipe at his former employee.
“If anyone is looking for a good lawyer, I would strongly suggest that you don’t retain the services of Michael Cohen!” he tweeted.
Earlier this week, Trump compared his situation to one involving President Barack Obama’s 2008 campaign. The Federal Election Commission, which typically handles smaller campaign finance violations, where the actions aren’t willful, with civil penalties that are typically fines, docked the Obama campaign $375,000 for regulatory civil violations. The fines stemmed from the campaign’s failure to report a batch of contributions, totaling nearly $1.9 million, on time in the final days of the campaign.
But legal analysts said the accusations against Trump could amount to a felony because they revolve around an alleged conspiracy to conceal payments from campaign contribution reports - and from voters. It’s unclear what federal prosecutors in New York will decide to do if they conclude that there is evidence that Trump himself committed a crime.
The Justice Department, in opinions issued by its Office of Legal Counsel, has said a sitting president cannot be indicted because a criminal case would interfere with the duties of the commander in chief. Prosecutors in the Southern District of New York, and with Mueller’s office, would presumably be bound by that legal guidance unless the Justice Department were to nullify the opinions.
Politically, Trump’s shifting claims could harm his credibility with voters, but legally they may not make much of a difference.
“It’s not clear to me that he’s made any false statements in legal documents that could open him to liability for perjury,” Hasen said.
For the payments themselves to be a crime rather than a civil infraction, prosecutors would need to show that Trump knew that what he was doing was wrong when he directed Cohen to pay the women and that he did so with the goal of benefiting his campaign.
Trump has not yet laid out a detailed defense, though he could conceivably argue that the payments were made not for the purposes of advancing his campaign but rather to prevent sex stories from emerging that would be personally humiliating to him and harm his marriage.
That argument was advanced by former Sen. John Edwards, a North Carolina Democrat, in a similar campaign finance case that went to trial. But that may be tougher for Trump than it was for Edwards given the proximity of the president’s payment to the election — timing that, on its face, suggests a link between the money and his political ambitions.
Still, the cases aren’t always easy, as proven by the 2012 trial of Edwards. Jurors acquitted Edwards on one charge of accepting illegal campaign contributions, but couldn’t reach a verdict on the five remaining counts including conspiracy and making false statements. Prosecutors elected not to retry Edwards, the Democratic vice presidential nominee in 2004 and a candidate for president in 2004 and 2008.
