“The Chance of Michael Cohen Facing Criminal Campaign Finance Charges Just Went Up”

I have written this piece for Slate. A snippet:

The new Wall Street Journal report describes some apparent documentary evidence. According to the Journal, Daniels’ former lawyer Keith Davidson had approached Cohen in September 2016 about securing a payment from Trump to buy Daniels’ silence. “Mr. Cohen was dismissive, saying the story was bogus,” according to a source who spoke to the Journal. Yet one month later, right as the “Access Hollywood” tape emerged of Trump crudely discussing his sex life and saying disparaging things about women, Cohen was suddenly interested in making a deal with Daniels.

The Journal reports federal prosecutors view the release of the “Access Hollywood” tape as the “trigger” for Cohen’s payments to Daniels.

That’s a big deal. Two important Republican election lawyers have attempted to set a high bar for how to tell when a payment in this context might be campaign-related rather than personal. Charlie Spies told the Journal in February that the payment to Daniels was “an expense that would exist irrespective of whether Mr. Trump was a candidate and therefore should not be treated as a campaign contribution.” And former Federal Election Commission chair Brad Smith wrote in an April op-ed in the Journal that “FEC regulations explain that the campaign cannot pay expenses that would exist ‘irrespective’ of the campaign, even if it might help win election. At the same time, obligations that would not exist ‘but for’ the campaign must be paid from campaign funds.”

Even under these tough standards for what counts as campaign-related, the proof of the timing would be damning for Cohen. Why should Cohen not care a whit about protecting Trump’s reputation in his wife’s eyes in September 2016, but be anxious to close the deal—and shut Daniels up—right as the campaign faced a crisis involving allegations of Trump’s treatment of women? The Daniels payment was not an expense that existed until the campaign needed it. But for the campaign, it seems that Cohen would not have paid.

 

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