“The Coming Storm? Hush Money and the Federal Election Campaign Act”–On Trump at That $130K to Stormy Daniels

Important analysis by Thomas Frampton at the Harvard Law Review blog:

In August 2016, federal law enforcement and intelligence officials were alerted to an unsettling possibility: then-candidate Trump’s personal indiscretions might leave him susceptible to the threat of Russian blackmail. We now know that, as the election drew near, those close to Trump were also fretting about other kompromat — albeit of a more homegrown variety. The threat of one particular disclosure was serious enough that Trump’s personal lawyer Michael Cohen reportedly “arranged a $130,000 payment to a former adult-film star” to procure a non-disclosure agreement, funneling the funds through a hastily formed Delaware LLC to a representative of Stormy Daniels.

But in making such a payment, those involved may have broken the law. The watchdog group Common Cause has alleged as much in an FEC complaint, relying on the same statutory provisions used by federal prosecutors to indict and try former Senator John Edwards. Edwards ultimately beat the criminal charges, thanks in part to defense attorney Abbe Lowell, now counsel to Jared Kushner. But if the reports of a secret pre-election payment to Daniels are accurate—and there are still many important unknowns, which I’ll discuss—key obstacles that thwarted federal prosecutors in 2011 will not be in play.

If nothing else, the extraordinary sequence of events in October 2016 sheds light on how aggressively Trump, or those in his immediate orbit, responded to the threatened release of damaging personal information. This behavior alone is notable and should be of interest to those investigating L’Affaire Russeand Trump’s susceptibility to blackmail. But the recent reports are also unsettling because, in their haste to ensure Daniels’s pre-election silence, Trump’s lawyer and others may have violated the Federal Election Campaign Act of 1971 (FECA). After a year dominated by allegations of collusion between the Trump campaign and Russia, it is collusion between the Trump campaign and a former porn star that may pose the greater legal peril to the presidency….


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