Jessica Hysong
7/19/18 4:42pm
Just when we thought we had our collective outrage pointed in the direction du jour, at Putin, the ‘failing’ NYT was kind enough to break a story that brings us back to the sleaze we hadn’t heard so much about for a month or so. Cheers, guys. Thanks a ton.
So here’s why back channel hush payments to porn stars and playboy models are a BIG deal, and not just a ‘so what Donald has affairs, we’ve known forever, yawn’ issue.
The initial relevancy of this turns around a central if/then: if these payments advanced (or limited damage to) the president’s campaign, then they constitute campaign contributions. As campaign contributions, then legally they had to be recorded by the campaign and included in required reporting to the Federal Election Commission (FEC), established by a 1974 amendment to the Federal Election Campaign Act.
So you see, this isn’t a debate about whether the president needs to be a morally aspirational person. Although it’s certainly worth pointing out the surreal aspect of the country and party which had some super-strong opinions about extramarital sex in 1999 now arguing the flip side of that coin with equal fervor. But anyway, this is a debate about whether the president’s campaign broke the law and how much he knew about that. Americans deserve to know who is spending money to influence our elections. And we have laws about disclosing that for this reason.
As to the question of whether these payments helped the campaign, I think we can probably all agree that a candidate whose target voter included all of evangelical Christian America would reasonably assume that stories about multiple affairs, including one happening while his third wife was giving birth to their son, would be potentially harmful to his chances. I’m not a lawyer, but that seems more than reasonable as an assumption to me. So we will proceed with the assumption that these hush payments were substantive campaign contributions.
Circle back to today and we now have a story in the NYT, seemingly not-yet-failed, that there is a recording of Trump instructing Cohen to make a hush payment to Karen McDougal. She had an affair with Trump that was revealed by the Wall Street Journal just days before the election. In response to the WSJ story, Hope Hicks gave the official campaign response that Trump “[had] no knowledge of any of this”.
That response is obviously significant because it is now a clear and proven lie. But for the purposes of elaborating the larger issues, I’m going to focus on the other payment in question, about which there is much more detail currently in the public domain. Stormy Daniels, an adult film actress who had an affair with Trump in 2006, was paid $130,000 by Cohen for her silence in the weeks preceding the election.
Again, campaigns are required to report all contributions, including all spending that is done on behalf of or coordinated by a campaign. And the Trump campaign never reported either of these sums in its FEC filings. So we have established a probable campaign finance violation. Cohen acknowledged the payment to Daniels in Feb 2018, saying the $130,000 payment was from his own money. This claim sparked fairly immediate questions by experts, as it is pretty clearly a contribution and thus would have exceeded the limit that an individual is allowed to give under campaign finance law by $126,500.
Speaking from Air Force One in early April, Trump denied knowledge of the payment made by Cohen to Daniels, saying he was not aware of why it was made, or where Cohen got the money. A month later, Rudy Giuliani gave an interview to Fox and claimed Trump did know and did reimburse Cohen for the payment. This admission changed the nature of the issue from a reporting omission to a “knowing and willful” violation, committed with the full knowledge of the candidate and deliberately structured to hide the payment. Indeed Trump and Cohen set up a shell company through which to make the payment, a clear indication that they desired to avoid transparency. According to a Congressional referral sent to the FBI today by Rep Ted Lieu, “if the expenditures were made in cooperation, consultation…or at the request of [the] candidate’s campaign, then those expenditures were illegal. Under FECA, if the violation aggregates to more than $25,000, then the penalty is a fine AND imprisonment of up to five years” 2 USC ss 437g(d)(1)(A).
The FEC and/or FBI will ultimately decide the nature of and any potential consequences for these actions. But the revelations in the Stormy Daniels case are by no means limited to these legal infractions. Indeed the lies and obfuscations in this case may ultimately provide the means to exposing systematic corruption that spans the globe.
The shell company that Michael Cohen formed to facilitate the payment to Stormy Daniels is called Essential Consultants LLC. And in his haste to profit from his client’s election, Mr. Cohen used this company for a lot of banking activity outside of the payment to Daniels. He used it to accept a lot of backchannel payments from companies who hired him to provide “insight” into the new administration. In other words, to buy influence with the President. And by a lot of payments, I mean at least $4.4M that is publicly known through this one company alone.
Among the companies known to have paid this shell company are: Novartis, AT&T, Korea Aerospace Industries, and Columbus Nova. Columbus Nova is notable for its ties to Viktor Vekselberg, another of those Russian oligarchs we keep hearing so much about.
It’s important to note that nothing in the public record to date indicates Trump either knew about or acted upon these influence payments. But’s let’s remember that the SDNY field office of the FBI executed a search warrant and raided Michael Cohen’s office in May, and Trump was so upset by this that he held an impromptu press briefing in the late evening to accuse the FBI of “vandalizing” his then-lawyer’s offices. He has since been aggressively fighting the use of documents seized in that raid.
So what today’s revelation seems to indicate is not just “big deal, Trump knew about another hush payment”, but rather that Michael Cohen likely has recordings of Trump authorizing other illegal activity. And if Trump knew about THIS relatively minor illegal activity, what did he know about the remainder of Essential Consultants “business”? This may mean nothing other than the confirmation of essentially already known campaign finance violations. But the source for the NYT article pretty much has to be Cohen himself. Cohen has been making statements about flipping on Trump for weeks now, both through his own social media account and via other celebrities he has been offering to provide with information to publicize. The byline on today’s article includes Maggie Haberman, who has been Trump’s own favorite love/hate relationship at the paper. He’s given her interviews, “leaked” stories to her, and also criticized her publicly for daring to write negative stories about him. A not so subtle gesture by Cohen there possibly.
A point in closing. We should remember when we hear what is essentially the “so what” defense that this is ultimately an attempt to do two things. The first is to normalize the concept in public discourse. So what if Trump has affairs, everybody does it? We already had a president who had affairs, at least this will be OUR guy who has affairs. Boom. You’ve overcome objections to your moral inadequacies. The second is more subtle: to blameshift and thereby undermine associated revelations. Trump may have had an affair while his wife was giving birth but that woman signed an NDA, she should never have even talked about it! And if she had honored her agreement, then poor Michael Cohen’s life wouldn’t be ruined right now. It’s the same narrative we are being asked to accept about Paul Manafort and his “unrelated to the campaign” money laundering. He’s a victim of Mueller’s “witch hunt” and these crimes would never have come to light, are outside of Mueller’s scope, etc. (spoiler: no they’re not, and they’re very much related to the campaign).
Keep your wits about you when you watch and read. These people are experts at driving the conversation in the direction they want it to go, and keeping your eyes off of the shadows they don’t want you to stare at for too long.
#BASTA