I’ll give you my “eight dimensional chess” theory of Michael Cohen’s bizarre announcement last night that he did indeed “facilitate” a payment of $130,000 to Stephanie Clifford, a.k.a. Stormy Daniels. Simply, Stormygate is much less damaging to Trump than Portergate is. Portergate has already claimed the White House staff secretary and may yet consume the White House chief of staff. Stormygate won’t claim anything except a little marital trust between the Trumps. So here’s Cohen tossing a large breadcrumb in the direction of Stormy Daniels and away from Rob Porter in hopes that the media will chase after it. Shrewd!
If you like the eight-dimensional-chess theory, let’s add another dimension to it. Nine-dimensional-chess: Cohen disclosed the payment to Clifford *hoping* that she’d seize on it to break her NDA and start blabbing about her not very scandalous affair with then-private-citizen Trump. It’s like a firefighter starting a smaller, manageable fire to deny oxygen and tinder to a much larger one. Let Stormy take over page one and the Porter thing will finally extinguish.
Stormy Daniels, the porn star whom President Donald Trump’s personal attorney acknowledges paying $130,000 just before Election Day, believes she is now free to discuss her alleged sexual encounter with Trump.
A manager for the adult film actress told The Associated Press on Wednesday that Daniels believes Trump’s lawyer invalidated a non-disclosure agreement by publicly discussing the payment.
Gina Rodriguez says the actress, whose real name is Stephanie Clifford, will discuss her alleged 20006 extramarital affair with Trump.
If that’s true, Clifford’s obviously not going to wait for a court ruling on it. She’s going to go sell her story to a tabloid, collect the check, and then dare Cohen to sue her to try to enforce the NDA. She could have tried that all along and counted on the publicity to steer Cohen away from filing suit, but now that he’s blabbed about the payment she has an actual defense in court if he tries it. Coming soon to a newsstand near you: “STORMY TELLS ALL ABOUT THE PRESIDENTIAL JUNK.” Pull quote: “Let’s just say it’s true that his hands are unusually small for a man his height.”
I don’t buy the eight-dimensional chess theory, though. I think Cohen coughed up some details on the payment to Daniels because, as the NYT noted last night, an FEC complaint has been filed against the Trump campaign by Common Cause, an electoral watchdog group. The rules on campaign contributions for purposes of federal law are surprisingly broad, as John Edwards discovered to his dismay a few years ago. Remember that? A couple of rich donors to his campaign tried to make his “love child” problem go away by quietly paying big bucks to the child’s mother to keep quiet. Since the payment didn’t involve Edwards’s campaign, it didn’t qualify as a campaign contribution from a legal standpoint — or so the theory went. According to the FEC, though, any payment made for the purpose of influencing an election on a particular candidate’s behalf is a contribution, whether his official campaign touched the money or not. And there are all sorts of rules that apply to contributions — reporting rules, caps on how much an individual can legally donate, and on and on. What about the $130,000 payment to Daniels? Was that a campaign contribution?
Hans von Spakovsky, who sat on the FEC under Bush 43 and now sits on Trump’s election integrity commission, wrote about the Edwards case in 2012. Quote:
FEC regulations state that the payment of a personal expense by any person other than the candidate is considered a contribution to the candidate, unless the payment would have been made irrespective of the candidacy. As the FEC said in a prior advisory opinion, the key question is, “Would the third party pay the expense if the candidate was not running for Federal office?”…
But the gifts made on behalf of Edwards by his campaign contributors to keep this potential scandal quiet were intended to help him stay in the 2008 presidential race as a viable candidate. They would not have been made if not for Edwards’s status as a federal candidate, and they were linked to a federal election. They should be considered illegal campaign contributions under federal law and applicable FEC regulations and advisory opinions.
Would Cohen have made a payment to Daniels to October 2016 if not for the election? The timing speaks volumes. Daniels gave an interview to In Touch years before, with Cohen allegedly threatening to sue the magazine at the time if it published. A gossip blog in 2011 did in fact publish the Trump/Daniels rumor. Even so, there’s no evidence that he or Trump ever worried so much about her blabbing that they were willing to pay her to keep quiet … until a month before a presidential election in which Trump was a candidate. That sure sounds like a campaign contribution.
But back up. Who made the contribution, i.e. the payment to Daniels? The media keeps reporting that Cohen paid the $130,000 out of his own pocket but Cohen never admitted that in his statement last night. He said he used his own funds to facilitate the payment, as Orin Kerr noted. All that might mean is that he paid to set up the LLC in Delaware from which the payment was made. But who provided the funds for the payment itself? Was it Cohen, in which case he’d be in a similar position to the Edwards donors in trying to make a problem for his friend go away? Was it some other third party? Was it … Trump? Cohen specified in his statement that neither the Trump Organization nor the Trump campaign provided any money for the payment, but that doesn’t solve the puzzle here.
WaPo considered the implications of who the mystery donor might be:
A business outside the campaign. If the source of the $130,000 was a business, Noble says, and the contribution was considered a campaign contribution, it would be illegal. Businesses can’t make payments of that size to a campaign.
An individual outside of the campaign. Let’s say that some random wealthy Trump supporter stumbled onto the Daniels story and decided to offer her payment to stay quiet. Interestingly, Noble said, this might not be a violation of campaign finance laws. Instead, it would function more as an independent expenditure on behalf of the Trump campaign.
But it’s essential that this person have no connection to the campaign.
Someone working for the campaign. It can be hard to determine who counts as an “agent” of a political campaign. Someone on payroll, certainly. Someone reimbursed for expenses, yes. But does Cohen count? He wasn’t paid by the campaign, though he regularly appeared on television on Trump’s behalf.
It’d be perfectly legal for Trump himself to have kicked in the $130,000 for Daniels, as candidates can give as much as they like to their own campaigns. But those contributions need to be reported. And the Daniels payment wasn’t. What does the Trump-controlled FEC do if it turns out POTUS tried to sneak hush money paid to a porn star past them, or if in fact the Trump Organization picked up the tab for $130,000, which would be a no-no per WaPo?
One last note. John Edwards ended up walking free after being indicted for the donor-financed payment to his mistress in 2008 because prosecutors couldn’t prove conclusively that the money was designed to influence the election rather than to simply protect Edwards’s wife from embarrassment. In the very, very unlikely event that Trump were ever indicted for this — imagine if he escapes charges in Russiagate only to be torpedoed by Stormygate — no doubt his lawyers would make the same argument, that the payment was made to spare Melania Trump from some embarrassment, not to protect Trump’s chances of winning the election. They’d have some firm ground on which to make that case too since Trump’s reputation was already so poor, after the “Access Hollywood” tape and the sexual assault accusations, that it’s hard to see how Daniels’s tale would have been threatening to the candidate. (Relatedly, notes WaPo, if Cohen can show that he’s made similar payments on Trump’s behalf to other women in a non-electoral context — which seems highly plausible — that would be evidence that the hush money to Daniels wasn’t aimed at the election but simply how Trump chose to deal with personal scandal routinely.) But do you really want his lawyers to have to go into court and explain why, exactly, he paid off a porn star, and why he didn’t feel the urgency to offer her cash to keep quiet until a month before an election when the allegations about the two of them had been made public years earlier? C’mon.