The potential charges apparently deal with the $130,000 hush-money payment that then-Trump lawyer Michael Cohen made to porn star Stormy Daniels late in the 2016 campaign. The payment was made to prevent her from going public with her allegation of an affair with Trump. We ultimately found out that Trump knew about the payment and that he reimbursed Cohen. But Trump’s company labeled the reimbursement as “legal expenses,” and the payments were not reported on Trump’s campaign finance reports.
It would be a misdemeanor if it was proved that Trump falsified his business records. But it could be a felony if prosecutors can prove that the falsification was tied to another crime or intended crime. A possible candidate for that other potential crime: the campaign finance violation to which Cohen has already pleaded guilty in the case.
The legal threat to Trump in New York, explained
Tacopina’s defense focuses largely on the more serious potential criminal charge. It rests on the idea that this wasn’t actually a campaign expenditure, because Trump would have paid off Daniels regardless of the campaign.
Let’s run through the claims:
TACOPINA: “This was a plain extortion, and I don’t know since when we’ve decided to start prosecuting the extortion of victims? He vehemently denied this affair, but he had to pay money because there was going to be an allegation that was going to be publicly embarrassing to him — regardless of the campaign.” (A B C)
The “extortion” defense appeared to be an early focus for Trump’s legal team. But it bears emphasizing that it is a rather novel one. It doesn’t appear to have been featured much before. Daniels has never been charged with such a crime. And some legal experts have argued it’s really neither here nor there when it comes to Trump’s legal liability; even if it was extortion, they argue, that wouldn’t change whether Trump’s falsified business records. Indeed, some argue this could help prove the falsification, because it involves considering Trump did “pay money” to bury the story — not for the “legal expenses” claimed.
Trump NY defense: I was extorted. That is an admission he paid $ (which he had been denied) and the $ was not for legal fees (the cover story). Because the NY criminal case reportedly focuses on the crime of making false business records — his “defense” is a confession.
— Andrew Weissmann 🌻 (@AWeissmann_) March 14, 2023
(MSNBC’s Ari Melber plays a 2018 clip of Trump falsely denying knowledge of the Daniels payment. “Mr. President, did you know about the $130,000 payment to Stormy Daniels?” a reporter asks. Trump responds: “No, no. What else?”)
TACOPINA: Ari, that is — if that’s what you’re going to consider a lie — a lie to me is something material under oath in a proceeding.
MELBER: Well, I didn’t say perjury. I said a lie.
TACOPINA: Yes. But that’s not a lie. …
Because it was a confidential settlement, so if he acknowledged that, he would violate the confidential settlement. So is it the truth? Of course it’s not the truth. Was he supposed to tell the truth? He would be in violation of the agreement if he told the truth. So by him doing that, by him doing that, he was abiding by not only his rights but Stormy Daniels’s rights. (MSNBC)
This is some real lawyering. Tacopina initially suggested it wasn’t a lie because it wasn’t under oath, but Melber’s question indeed said nothing about perjury. Then Tacopina moved on to suggest Trump had no choice but to deny it. Except Melber rightly points out that Trump could only have not commented on the situation, rather than offer the false denial.
Tacopina then, remarkably, suggests he doesn’t even know when the video clip was from. He questions whether it came after another clip Melber had played of Trump and Cohen, in fact, discussing the payment. “I don’t know the timing of that video in relation to the timing of the other video where he was speaking to Michael Cohen,” Tacopina said.
But that other clip was from 2016. The timeline is clear. These are hugely significant events in the case. That Trump’s own lawyer suggested he wasn’t familiar with that timeline is something.
TACOPINA: “Here’s the bright-line test, and it ends this case — it ends any case with regard to Stormy Daniels. If the spending or the fulfillment of a commitment or the expenditure would exist irrespective of the campaign, it’s not a campaign law violation. End of story. This would exist irrespective of the campaign.” (MSNBC)
TACOPINA: “The campaign finance laws are very, very clear, George — that you cannot have something that’s even primarily related to the campaign to be considered campaign finance law.” (on ABC to George Stephanopoulos)
This seems to be the crux of the Trump legal team’s argument. In order to charge a felony, prosecutors need to prove the alleged falsification was done in service of another crime or intended crime. Tacopina is saying that other crime simply doesn’t exist — that the undisclosed payment wasn’t a campaign finance violation because it wasn’t a campaign expenditure. He’s saying Trump would have paid Daniels off regardless.
The first thing to note is that this is an established campaign finance violation; Cohen pleaded guilty to it in federal court. And the Daniels payment was made in late October 2016, just before Election Day.
The second is that both Cohen and another party involved in Trump’s hush-money payments (this one involving Karen McDougal) have said the payments were geared toward the campaign. American Media Inc. admitted as part of a non-prosecution deal that its “catch and kill” payment to McDougal came “in concert with a candidate’s presidential campaign, and in order to ensure that the woman did not publicize damaging allegations about the candidate before the 2016 presidential election .”
Beyond that, Trump lawyer Rudy Giuliani has also put the Daniels payment in the context of the campaign. Even while making a similar argument to Tacopina’s in 2018, Giuliani added (rather unhelpfully), “Imagine if that came out on October 15, 2016, in the middle of the last debate with Hillary Clinton.”
The law says that something is a campaign expenditure if it is paid “for the purpose of influencing an election.” As Tacopina noted, former Republican members of the Federal Election Commission have argued that this doesn’t necessarily make Trump’s payment a campaign expenditure. That’s because, in their estimation, many things could be construed as having some kind of influence on the campaign but aren’t primarily done for that purpose. They’ve noted that the campaign finance law restricts using campaign funds on items for “personal use” — that is, “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.”
Furthermore, Tacopina’s suggestion that something “even primarily related to the campaign” might be exempt suggests Trump’s legal team will go with a very broad interpretation.
TACOPINA: “A donation to his campaign by himself. OK. That’s what it would be. This is very — look, John Edwards — remember that case, where a third party paid for John Edwards’ mistress who was pregnant with his baby and all that stuff? That was a third party. That was a donor, okay. He was acquired. And the DOJ dropped all charges on the hung counts on that.” (MSNBC)
The failed Edwards prosecution is likely to be a feature of Trump’s defense and PR effort, given the similarities. This also involved payments to a woman who wasn’t a presidential candidate’s wife. But there are significant differences.
One is that prosecutors in the Edwards case couldn’t prove the donor knew where the money was going or that Edwards or his campaign solicited the money specifically for the purpose of paying off his mistress, Rielle Hunter. In the Cohen/Daniels case, these are much more established.
A second is that one of the payments came even as Edwards’s campaign was ending — in contrast to the Trump payments coming at the tail end of a competitive race that Trump won. That undercut the idea that the Edwards payments were clearly about the campaign.
TACOPINA: “Donald Trump is going to win the election, and if they bring this case, I believe this will catapult him into the White House. I believe it. Because this will show how they are weaponizing the justice system. They’re taking the vote out of the voters’ hands.” (MSNBC)
This would seem to give away at least a large portion of the game. Melber correctly noted that this isn’t strictly relevant to a potential prosecution; what is relevant to public dissent over such a prosecution and suggesting it would be a politically unwise decision.
Indeed, much of this appears geared toward a PR effort rather than a legal one — as much of Trump’s commentary on such cases often is — with the apparent understanding that this PR campaign might impact the prosecution’s decisions.