Stormy Daniels’ highly anticipated 60 Minutes interview offered salacious details about the porn star’s alleged tryst with Donald Trump, including her memorable account of playfully spanking the future president with a magazine.
But the greatest potential legal jeopardy for Trump and his allies surrounds the $130,000 payment she received from Trump’s longtime lawyer Michael Cohen 11 days before the election to keep silent about the alleged affair.
“The payment of the money just creates an enormous legal mess for I think Trump, for Cohen and anyone else who was involved in this in the campaign,” Trevor Potter, a veteran campaign-finance lawyer and former Federal Election Commission chairman, said on the CBS program.
The watchdog group Common Cause already has filed complaints with the commission and the Department of Justice, arguing that the payment violates election laws. Another group, Citizens for Responsibility and Ethics in Washington (CREW), argues that Trump may have run afoul of rules requiring him to list his personal debts on a financial disclosure form.
Here’s a look at the some of the potential areas of legal risk for Trump and Cohen:
An excessive campaign contribution?
Under federal law, an individual could not donate more than $2,700 directly to Trump’s primary or general election campaign in 2016. A $130,000 payment would far exceed that limit.
But federal investigators would have to weigh whether the payment was, indeed, about influencing the election. In her lawsuit, Daniels says it was.
Daniels, whose legal name is Stephanie Clifford, said the affair began in 2006 and lasted into 2007. But she said Trump and Cohen “aggressively sought to silence” her in October 2016 — a decade after the alleged relationship began — to help “ensure he won the presidential election.”
Just days before the election, Daniels and Cohen signed what she calls a “hush” agreement. The money paid to Daniels flowed through Essential Consultants, a limited liability company Cohen created in Delaware several weeks before the election.
“It’s very strong evidence that this was about the election,” said Larry Noble, a former Federal Election Commission lawyer who is now senior director of the non-profit Campaign Legal Center. “If he was not running for election, they would not have done this.”
If the $130,000 payment came from Trump himself, the payment did not violate the law on contribution limits. Candidates can put unlimited amounts of their own money into campaigns.
But Trump’s campaign, and Cohen, could be in legal jeopardy if Cohen, or another unnamed party, was the source of the money.
Cohen has offered partial explanations about the source of the funds. Earlier this year, he said he used his own money to “facilitate” the payment and was not reimbursed by either Trump’s company or the Trump campaign. He has since offered more detail, saying he used a home-equity line of credit to pull together the money to pay Daniels.
And in a recent interview with Vanity Fair, Cohen insisted he acted on his own and without Trump’s knowledge at the time of the payment.
“People are mistaking this for a thing about the campaign,” Cohen told the magazine. “What I did defensively for my personal client, and my friend, is what attorneys do for their high-profile clients. I would have done it in 2006. I would have done it in 2011. I truly care about him and the family—more than just as an employee and an attorney.”
Cohen’s statements have been silent on whether Trump — or anyone else — paid him back later. The Wall Street Journal, citing unnamed sources, reported that Cohen complained to friends after the election that he had not been reimbursed.
Cohen has not responded to USA TODAY’s questions about possible reimbursement.
Did Trump’s company play a role?
Federal law prohibits corporations and labor groups from donating directly to candidates. Companies and unions also are barred from “facilitating the making of contributions to candidates or political committees.”
Cohen, who served as a top lawyer with the Trump Organization in 2016, has said the company was not involved. But an email released by Daniels’ attorney Michael Avenatti shows Cohen using a Trump Organization email address as he worked to arrange the payment to Daniels.
Cohen said he often used his work address for personal business. “I sent emails from the Trump Org email address to my family, friends as well as Trump business emails,” he told ABC News. “I basically used it for everything.”
Noble, the former FEC official, said regulators might not look askance at the mere use of the corporate email account. “If it was one or two emails, I would say ‘no,’ ” he said. But they might want to know whether it represents a larger role by the company, he added.
In February, another Trump Organization lawyer filed a legal document in a secret arbitration proceeding to block Daniels from talking about the alleged relationship. Company officials say that attorney, Jill Martin, acted in her personal capacity and that the Trump Organization is not representing any party in the Daniels’ dispute.
A variety of federal laws demand truth-telling when reporting information to the government.
Campaign finance watchdogs say the payment could violate election-disclosure laws, which require reporting of contributions and spending to help a candidate.
In addition, if Cohen was never reimbursed, the $130,000 payment should have appeared on Trump’s financial disclosure statement as an unpaid personal debt, according to CREW.
CREW has filed complaints with Department of Justice and the Office of Government Ethics asking the agencies to investigate whether Trump “willfully failed to report this potential liability.”
Will anyone investigate?
That’s not clear.
The Federal Election Commission, down to just four commissioners from its normal six-person strength, typically deadlocks along party lines when it considers potential campaign finance violations.
Commissioners must vote to authorize a full investigation.
The Daniels’ case is one of two pending from Common Cause regarding payments to women who claimed trysts with Trump.
The other FEC complaint questions whether a reported $150,000 payment in August 2016 from the parent company of The National Enquirer to former playboy model Karen McDougal was intended to “buy and bury” the story of her alleged affair with Trump.
An FEC official declined to comment on the complaints, citing a provision of federal law that bars the agency from discussing pending cases.
Election law experts say recent history also could make the Department of Justice wary of the case.
In 2012, Justice Department prosecutors failed to convict former Democratic presidential contender John Edwards on campaign-finance violations after his supporters made $1 million in secret payments to conceal a pregnant mistress.
Edwards’ lawyers argued the payments were aimed at shielding his wife, Elizabeth, who died of cancer in 2010, not hiding the information from voters.
“Proving intent beyond a reasonable doubt is a really tough thing to do,” said Richard Hasen, an expert on election law at the University of California-Irvine. “I think the only way a case could go forward on that basis is if there’s some kind of documentary evidence — such as a text or an email — which indicates that (the election) was the reason for the payment.”
“If Cohen said, for example, ‘This getting out would kill the campaign,’ that would be strong evidence of motive,” Hasen said. “But in the absence of that, it’s tough.