The potential criminal charges looming over former President Donald Trump in New York center on the payment of hush money to adult movie actress Stormy Daniels in the final days of Trump’s 2016 presidential campaign.
The payment was made by then-Trump lawyer and fixer Michael Cohen as part of a scheme to “catch and kill” politically damaging stories about the real estate mogul’s marital infidelities.
Cohen pleaded guilty in connection with the case in 2018 but federal prosecutors did not charge Trump, leaving it to New York City’s district attorney to pursue the case under state law.
In court documents in 2018, federal prosecutors laid out how Cohen, working at the behest of Trump, sought to prevent the candidate’s female accusers from going public with their allegations.
Along with Cohen, a key player in the effort was David Pecker, the chairman of the American Media Inc. (AMI), the company that at that time published the supermarket tabloid National Enquirer.
A long-time Trump friend, Pecker had offered “to help deal with negative stories about (Trump’s) relationships with women” by identifying stories that could be bought and then suppressed. The practice is known as “catch and kill.”
In August 2016, AMI agreed to pay former Playboy model Karen McDougal $150,000 for the rights to her story about an alleged affair with Trump in 2006 and 2007.
Two months later, a representative for Daniels informed AMI that the porn star was going public with her account of a sexual encounter with Trump and was willing to sell her story.
Having failed to ink a deal with Daniels, Pecker put her agent in touch with Cohen, who negotiated a $130,000 agreement to “purchase (her) silence,” prosecutors wrote in August 2018.
Paying hush money is not a crime. But federal prosecutors alleged that Cohen arranged for the payments to Daniels and McDougal in an attempt to sway the presidential campaign.
What is more, prosecutors said, what should have been disclosed as campaign spending was recorded as a legal expense, a violation of federal campaign finance laws. The Trump Organization later reimbursed Cohen under a purported legal “retainer agreement.”
In fact, according to federal prosecutors, “there was no such retainer agreement, and the monthly invoices Cohen submitted were not in connection with any legal services he had provided in 2017.”
In August 2018, Cohen pleaded guilty to eight federal criminal charges, including campaign finance violations related to the payment of $130,000 to Daniels.
In the lead up to his guilty plea, Cohen admitted under oath that he had facilitated the hush money payments “in coordination with and at the direction of” the former president.
Trump has acknowledged that Cohen was reimbursed for the $130,000 paid to Daniels to stop her “false and extortionist accusations.”
But he’s denied the payment was a “campaign contribution.”
“If it were, it's only civil, and even if it's only civil, there was no violation based on what we did. OK?" he told Reuters in 2018.
Cohen served most of a three-year prison sentence before being released in 2021.
Federal prosecutors did not charge Trump, and the case against him was dropped in 2019.
Former Manhattan District Attorney Cyrus Vance similarly opted against indicting Trump.
But the current DA, Alvin Bragg, elected in November 2021, has revived the investigation into whether Trump violated any state laws in connection with the hush money payment.
While any ultimate charges against the former president remain unknown, legal experts say they would likely center on the falsification of business records.
The theory is that Trump allegedly used the guise of a legal expense to hide the hush money payments in violation of federal election laws, according to legal experts.
Under New York law, falsifying business records is typically a misdemeanor. To elevate the charge to a felony, prosecutors would have to show that the act of fraud was carried out with the intent to commit, aid or conceal another crime.
“That other crime would appear to be the federal election violations which the Justice Department previously declined to charge,” Jonathan Turley, a law professor at the George Washington University, wrote in a column in The Hill.
Saying he “did absolutely nothing wrong,” Trump has called the New York District Attorney’s investigation a “witch hunt” led by a “racist” prosecutor. Bragg is Black.
This is not the only criminal case hanging over the former president. In Georgia, prosecutors are considering bringing criminal charges in connection with Trump’s effort to overturn the 2020 presidential election result in the state. Trump narrowly lost to Democrat Joe Biden in Georgia.
Meanwhile, U.S. Justice Department-appointed special counsel Jack Smith has been investigating Trump’s role in the effort to overturn the election results as well as his handling of classified documents after he left office.
Any indictment would make Trump the first former president to face criminal charges.
