On the face of it, the most lurid part of Stormy Daniels’ interview on “60 Minutes” came when Daniels revealed she’d essentially been browbeaten into taking $130,000 to keep quiet about her affair with Donald Trump. In case you missed it, Daniels claimed that she’d only signed the non-disclosure agreement when people began reaching out to her after Trump’s upset victory. It brought back memories of a chilling day five years ago when an unidentified thug warned her to “forget the story” or else.
But another bombshell may have been detonated by former Federal Election Commission Trevor Potter. He believes that longtime Trump lawyer Michael Cohen may have broken the law when he “facilitated” that payment to Daniels
Potter served on the FEC from 1991 to 1995, and was chairman in 1994. He now helms the Campaign Legal Center, a nonpartisan think tank focusing on election law. Midway through the interview package, Potter told Anderson Cooper that he believed the payment violated campaign finance law.
Mr. Trump’s attorney says the $130K he paid was not a campaign contribution, but Trevor Potter, a former chairman of the Federal Election Commission, disagrees. pic.twitter.com/Qxigc4R1l2
— 60 Minutes (@60Minutes) March 25, 2018
Potter believes that when Cohen cut the deal with Daniels, he created “an enormous legal mess” for himself, Trump, and possibly others. To Potter’s mind, when Cohen arranged the payment, he was making “a $130,000 in-kind contribution” to the Trump campaign.
Potter thinks this is problematic for Cohen on two counts. It would far exceed the legal limit that an individual donor can give to a campaign during an election cycle. Additionally, Potter believes that if Cohen acted on Trump’s behalf, it would amount to a “coordinated, illegal, in-kind donation” with the intent of helping Trump by keeping Daniels quiet.
Cohen says he tapped into his home equity line to pay Daniels, and was not reimbursed by the Trump campaign or the Trump Organization. But believe it or not, Cohen might actually look better if Trump actually reimbursed him. Potter told Cooper that a candidate can pay a contribution back without limit, which could be considered a mitigating factor. If there was no reimbursement, however, Potter believes Cohen is still “out on the line” legally.
How’s that, you ask? Well, Eric Levitz of New York magazine notes that federal law considers “paying someone not to disclose information that would damage a political campaign” to be an in-kind contribution to said campaign. And since Cohen’s donation far exceeded legal limits, it may have amounted to “an undisclosed and illegal donation” to the Trump campaign.
There are a lot of reasons to believe that Cohen intended all along to help the Trump campaign. When he negotiated the agreement, he did so using his Trump Organization email, and in his capacity as a “special counsel” to Trump. And when he sought a restraining order last month to silence Daniels, he just happened to do so with the help of one of his former colleagues–a Trump Organization lawyer. Moreover, under New York state bar rules, Cohen was required to keep Trump informed on this matter.
When former federal prosecutor and MSNBC contributor Joyce Vance saw this, she wondered if this could be grounds to invalidate the entire non-disclosure agreement.
Thinking out loud here: if Cohen’s payment to Stephanie Clifford is illegal because it violates FEC law, then how is it valid consideration for the contract?
— Joyce Alene (@JoyceWhiteVance) March 26, 2018
Retired attorney Colleen Duffy-Smith believes the answer is “yes.”
Me thinks under CA Civ Code Secs 1607 and 1667, an illegal form of consideration will not suffice as adequate consideration to bind.
— Colleen Duffy-Smith (@Colleenski) March 26, 2018
Harvard Law professor Laurence Tribe seemed to agree.
Very interesting. Suggests that the NDA with #StormyDaniels, being an illegal in-kind campaign contribution, would be unenforceable even if Trump had signed it. @MichaelAvenatti should take notice. https://t.co/uXrVw3L0lV
— Laurence Tribe (@tribelaw) March 26, 2018
Daniels is presently suing to invalidate the non-disclosure agreement because Trump didn’t sign it. But the prospect that the agreement itself is illegal appears to be a far stronger argument. After all, courts don’t enforce illegal contracts.
Now how much hurt could Cohen be in for? Well, it’s possible that Robert Mueller could use this payment to make Cohen sing about any possible ties to Russia. Potter sees parallels with how Mueller is handling former Trump campaign chairman Paul Manafort, who is currently indicted for numerous financial crimes.
Potter told Cooper that many of Manafort’s actions are “relevant to the investigation,” even though they don’t have anything to do with Russia. Given that Cohen was “involved–indisputably” in a number of Trump’s deals with Russians, Potter believes Cohen could be in for similar treatment.
And even if Cohen is telling the truth, his law license could be in jeopardy. Earlier in March, George Washington University law professor Jonathan Turley wrote that New York bar rules do not allow lawyers to “advance or guarantee financial assistance to the client” except in limited circumstances. He also noted that lawyers are not allowed to “intermingle personal and client funds.” So even if Cohen did make that payment out of his own pocket, he may still be in hot water.
For most of the last few weeks, Trump’s defenders have railed that it really doesn’t matter what Trump did a decade ago. But they’re missing the point. The real focus is what Trump–and those acting on his behalf–did shortly before Election Day. What emerges about those events could go a long way toward determining whether Trump is around to see the 2020 election.
(featured image courtesy ASACP RTA, available under a Creative Commons BY-SA license)