Cohen admitted to breaking the law and said he did it at Trump’s direction. But making that connection stick may require more evidence than what’s been publicly released so far, even setting aside the fact that the Justice Department’s internal policy is not to indict a sitting president.
The details: Cohen pleaded guilty yesterday to two specific charges:
1) Making an excessive campaign contribution (his own $130,000 payment to Stormy Daniels).
2) “Willfully causing” an illegal campaign contribution (arranging for the National Enquirer’s parent company to “catch and kill” Karen McDougal’s story about her alleged affair with Trump).
Although Trump wasn’t directly named, Cohen said he had acted “at the direction of” a presidential candidate. That candidate is Trump.
Campaign finance prosecutions are rare, and these are not the most common charges even within that context, said Rick Hasen, an election law specialist at the University of California, Irvine. But charges like these are not unprecedented.
The big question: Did Trump intend to break the law — and can prosecutors prove it?
“The big unanswered question is, what do they have besides Cohen’s word?” Hasen said.
Supporting evidence like text messages or (additional) audio recordings could help establish that Trump was looking after his political interests, rather than just his personal life.
The closest parallel is probably former Democratic presidential candidate John Edwards, who was prosecuted unsuccessfully in 2012 for allegedly using campaign money to cover up an extramarital affair and secret child.
One big difference, as former White House counsel Bob Bauer notes at Lawfare: The donors who contributed to Edwards were either dead or too old to testify. Cohen, on the other hand, is very much alive and able to appear in court.
Edwards’ lawyers argued that he wasn’t trying to conceal the affair to protect his political career, but rather to hide it from his wife. Trump could make similar arguments about the payments Cohen helped arrange, and proving his intent would be key to any prosecution.
“From everything I’ve seen, there are good defenses that the payments made by Mr. Cohen were made irrespective of Mr. Trump’s candidacy,” Republican campaign attorney Charlie Spies told The Wall Street Journal.
What’s next: It’s not clear how we’ll find out whether prosecutors have any further evidence of Trump’s intent.
Because the payments to McDougal were routed through American Media Inc., that company or its leaders could be charged, and more information could come out that way, Hasen said.