Generally true but tread lightly because traps abound.
I’m less certain that paying off women under these circumstances is a permitted campaign finance expenditure in any event. I understand that the general test for permitted campaign finance expenditures is the “irrespective test,” that is, whether the expense would exist irrespective of whether the person were a candidate for office. I would likely assert that Trump’s desire to keep his mistresses quiet would exist even if he weren’t a candidate since he is a married man with a wife to keep happy. I’d love to see a real analysis of that but I’m not prepared to do it.
Correct. Cohen was coordinating with the campaign when he made the payments, so it was a campaign contribution. I’m a little outside my area of expertise here, but the donation was also from a corporation, which isn’t allowed under the campaign finance laws. I understand that the campaign was also in violation because it didn’t report the contribution.
As I understand it, corporations can’t make direct contributions, in cash or in kind, to campaigns under federal election laws. Corporations can make “independent expenditures” to further a candidate but they can’t coordinate with the campaign to decide how to make those expenditures. Thus, super PACs can raise and spend money to promote a candidate but they can’t work directly with the candidate or the campaign in their efforts. In this case, Cohen’s company (Essential Consultants) was coordinating directly with the campaign and doing so at the candidate’s behest, so it was in violation of the campaign finance laws prohibiting direct corporate contributions to a candidate.
That’s my view.
I believe even a loan under these circumstances would be illegal because: (1) it could be considered a donation, since it does not appear to be a fair market value loan (i.e., it didn’t charge a market rate of interest), (2) the loan, if it was real, should have been disclosed on campaign finance paperwork, and (3) it’s unclear whether this was really intended to be a loan from the get-go or whether that was a post-hoc rationalization for Trump later paying off Cohen.
As I understand it, there is much more direct evidence of the conspiracy, namely that Cohen admitted he conspired with the candidate, and that his admissions are supported by documentary evidence of communications of coordination with the candidate and the campaign.
It might be illegal if the paper (1) bought and killed the story to advance the campaign, (2) they did so in coordination with the campaign, and (3) they knew their contribution was in excess of contribution limits. This gets worse for them if they also (4) conspired with the campaign to keep the in-kind contribution of the dead story undisclosed on campaign finance paperwork. If only (1) and (2) are proven, the general remedy is that the campaign must refund the excess contribution to the donor but the donor is not fined or otherwise punished. If (1), (2), and (3) are proven, the donor can be fined by the Federal Election Commission. If (4) is also proven, you could have a criminal conspiracy to violate federal election laws. My opinion is that freedom of the press issues are not meaningfully implicated here and the paper could be fined or criminally prosecuted if the requisite elements are shown.
It would be illegal if his principal motivation in making the payment was to promote the campaign, rather than for a non-campaign purpose like protecting the harmony of his otherwise blissful marriage. So a payment after the election would not likely be an illegal contribution (unless we have other facts, like that he was actually paying off a debt he made to the women before the election for campaign-related reasons).
If Trump had kept his big bazoo shut to his worthless lawyer and the public about his motives, this would be a hard case for prosecutors to prove. Prosecutors could have said that the timing of the payments implies intent to influence the election, but that wouldn’t be much for prosecutors to hang their hat on. Of course, Trump’s own words and Cohen’s statements make it clear that the payments were intended to influence the election so they are illegal campaign contributions.
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