Approximately two weeks ago, former Trump campaign aide Sam Nunberg publicly stated on MSNBC that a prosecutor on Mueller’s team asked Nunberg before Mueller’s Grand Jury whether he knew about any payments to women by the President or his campaign. This was not likely an idle question; prosecutors generally don’t waste time in a Grand Jury on tangential or irrelevant topics or, more importantly, on topics about which they have no other knowledge. Indeed, the fact that Nunberg was asked about payments to women indicates that Mueller is, at a minimum, analyzing whether the $130,000 payment to Stormy Daniels violated any criminal laws. In addition, it is a sign that Mueller, who is combing through bank records, emails, and other documentary evidence related to a bevy of members of the Trump orbit, may very well know about the existence of payments to other women. We also cannot discount the possibility that other witnesses, including cooperating witnesses Michael Flynn and Rick Gates, both of whom held significant positions in the Trump campaign, knew about other possible payments to silence women by Trump, his campaign, or his associates.
The Federal Election Commission has already received complaints about the Stormy Daniels payment and could impose civil penalties following an investigation. Mueller’s interest in these payments, however, is criminal in nature and likely relates to a relatively obscure campaign finance law that makes it a crime to knowingly receive or conspire to receive more than the federally-enacted limit for campaign contributions, or to cause or conspire to cause false campaign finance disclosure reports to be filed by concealing campaign contributions from the Federal Election Commission. As relevant here, the limit for individual donations to Trump’s presidential campaign for the general election was $2,700. Notably, a candidate can donate as much as he or she wishes to the campaign, but all such contributions must be disclosed to the FEC in a sworn statement.
As applied to President Trump, Mueller is likely looking at two possible violations in connection with the Stormy Daniels payment, both of which require Mueller to first establish that the $130,000 payment was a campaign contribution. First, if this truly was a “personal gift” from Trump’s personal attorney Michael Cohen on behalf of his friend and client, and Cohen was not repaid at all, then it was an in-kind campaign contribution that exceeded legal limits of $2,700 for the general election. Second, to the extent it was a payment made by Trump or his agent (such as arguably the Trump Organization), it was not disclosed in Trump’s campaign disclosures.
This specific law has been used in one high-profile criminal case that resulted in a significant failure for the Department of Justice: the 2011 prosecution of John Edwards, the former senator from North Carolina who ran for the Democratic presidential nomination in 2008, who was charged in federal court for receiving and concealing (and conspiring to do so) approximately $1 million in campaign donations – far in excess of the legal limit – as well as causing false campaign finance disclosures to be made by his campaign because he concealed the in-kind payments made to, and for the benefit of, his mistress. Edwards’ case was ultimately dismissed in 2012 after a jury acquitted him of one charge and hung on the remainder of the six counts. Edwards principally presented a defense that he was a bad husband but the payments were really intended to conceal his affair from his family, not the voting public, and therefore the payments were not campaign contributions but rather gifts from friends. (If that sounds similar to what Michael Cohen has said about his payment to Stormy Daniels, it’s because it is.)
In light of this failed effort to prosecute John Edwards for similar violations, and the absence of any other federal prosecutions with a similar fact pattern, one might assume that Mueller would not charge Trump or others in connection to the payment made to Daniels. Yet Mueller has demonstrated a dogged aggressiveness in his charging decisions to date, including through the use of a rarely employed legal theory in the indictment of 13 Russian nationals for conspiring to violate the election laws of the United States – a charge similar in kind to that contemplated here.
Moreover, I see several potential distinctions between the Edwards case and the limited public facts we know about the President’s case that make the President’s case much stronger for the prosecutor. They are as follows:
# 1. The proximity of the Daniels payment to the election – 11 days – provides a strong inference that the payment was related to the election, and not for any other reason such as concealing it from family members. John Edwards’ presidential campaign ended in January 2008, well before the November election, and it was clearly faltering when the payments were made in December 2007 and January 2008. Whereas Edwards could credibly argue that he wanted to conceal his ongoing affair (and particularly his child from that affair) from his family – and not the voting public – that argument is much more difficult for Trump to make in light of the close proximity of the suspect payment to the critical election.
#2 The temporal distance from the date of Trump’s affair with Daniels to the payment is approximately 10 years, which undermines his argument that the payment was not election-related. Whereas Edwards’ affair was ongoing and had resulted in the birth of an out-of-wedlock child, public accusations of Trump’s infidelity (and worse) were abundant after the publication of the Access Hollywood recording and before the Daniels payment was made. If Trump truly cared about concealing the affair from his family, he would have done so at or near the time it occurred.
#3. Mueller is undoubtedly interested in whether there were other similar payments made at or around the same time as Daniels’ because that would be powerful evidence that this was a coordinated effort to conceal his adulterous behavior from the voting public, and not for any other reason. For example, if Mueller can uncover communications that demonstrated a coordinated effort between Cohen and A.M.I., the parent company of the National Enquirer, which made a $150,000 payment shortly before the election to Karen MacDougal, a former playmate who also has publicly alleged that she had an affair with Trump in 2006 and 2007, that would be powerful evidence that the Daniels’ payment (and perhaps others) were made for election-related reason. Indeed, the argument that the timing was coincidental loses effectiveness when there are multiple hush payments made in the run-up to the election and well after the alleged incidents. The fact that the payments in the Edwards case were to one person with whom he had a long-term relationship allowed him to persuasively argue it was an isolated incident that he wanted to conceal from his family.
#4. The amount of money paid to Daniels is sufficiently small in relation to Trump’s purported wealth that Trump did not need a friend to make that payment for him. Nor would Mueller’s team likely believe that Cohen, Trump’s longtime attorney, made such a payment simply out of friendship. The apparent cover-up in this case gives rise to an inference of consciousness of guilt: whereas Edwards did not readily have the money that was ultimately paid to his mistress, the efforts that Cohen went to (presumably on behalf of Trump) to conceal the fact of the payment, as well as the affair itself, supports an inference that they knew they were doing something nefarious.
We of course do not know nearly as much as Mueller and his team, including whether any other similar payments were made from Essential Consultants, the LLC that Cohen established in October 2016 that made the payment to Daniels. But even from the limited amount that we do know, there is significant evidence that Cohen, Trump and/or members of his campaign violated campaign finance laws. Prudential and political reasons may militate against charging Trump with a violation of campaign finance laws – indeed, Trump is now the sitting President, not a failed presidential candidate like Edwards – but Mueller has demonstrated his aggressive approach through other charging decisions and those who may have conspired to conceal the Daniels payment (or others like it) should be wary.
Daniel S. Goldman spent 10 years as an Assistant U.S. Attorney for the Southern District of New York, where he was Deputy Chief of the Organized Crime Unit and Senior Trial Counsel in the Securities and Commodities Fraud Unit. He has recently provided legal analysis and commentary on MSNBC and CNN. He can be found on Twitter @danielsgoldman.