New ground for impeachment hearings: Trump’s hush money payments to influence the election

President Trump has been directly implicated—by his own personal lawyer—in a criminal conspiracy to illegally influence the election. This justifies an impeachment investigation.


On August 21, 2018, President Trump’s personal lawyer, Michael Cohen, pleaded guilty to eight criminal charges. Two of those charges stem directly from criminal actions that Cohen says he took at the direction of then-candidate Trump in connection with Trump presidential campaign. 


As set forth in the criminal information and in Cohen’s plea allocution, Cohen arranged for American Media Inc. (AMI) to acquire the rights to the story of Karen McDougal, one of Trump’s former mistresses, about her 2006-07 extramarital affair with Trump. In August 2016, AMI and McDougal executed an agreement in which AMI paid McDougal $150,000 for the rights to her story, with the purpose understood by all involved of suppressing the story so as to prevent it from influencing the election. Cohen then negotiated an agreement with AMI in which he would buy AMI’s rights to enforce the nondisclosure portion of its agreement with McDougal for $125,000. This agreement was signed by both parties, but never consummated.

As Cohen explained in his plea allocution, “I participated in this conduct . . . for the principal purpose of influencing the election.” Under 52 U.S.C. § 30118(a), it is illegal for a corporation to make a contribution to a candidate or candidate’s committee. Cohen pleaded guilty to Count 7, which charged that he caused a corporation (American Media Inc.) to make an unlawful campaign contribution.


In late October 2016, as Election Day neared, Cohen negotiated a similar hush agreement with Stormy Daniels, an adult film actress whose real name is Stephanie Clifford. Under the agreement, on October 27, 2016, Clifford received $130,000 from Essential Consultants LLC, a limited liability company that Cohen set up for the occasion, in exchange for keeping quiet about her 2006 extramarital sexual encounter with Trump.

Even before Cohen’s plea, Trump’s criminal defense lawyer Rudy Giuliani had confirmed that the purpose of this $130,000 payment was to influence the election. In Giuliani’s words, “Imagine if that came out on Oct. 15, 2016, in the middle of the, you know, last debate with Hillary Clinton.” Under 52 U.S.C. § 30116, contributions (including in-kind contributions) to federal candidates may not exceed $2,700. Cohen pleaded guilty to Count 8, which charged that Cohen made an in-kind contribution exceeding the federal limit by making and causing to be made an expenditure, in cooperation, consultation, and concert with, and at the request and suggestion of one or more members of the campaign.


In his plea allocution, Cohen told the judge that he had arranged both of the illegal hush payments “in coordination with and at the direction of” Donald Trump. (Technically, he said that he did so “in coordination with and at the direction of a candidate for federal office,” but that candidate could only be Trump. Similarly, the criminal information makes a faint-hearted effort at anonymizing Trump, as it refers to “Individual-1, who [by January 2017] had become the President of the United States.”)

The Cohen plea agreement and charge, along with other publicly available evidence of the president’s false statements, demonstrate that the conspiracy continued through at least May 2018, as the president’s company (the Trump Organization) reimbursed Cohen, and the co-conspirators—including Trump—attempted to conceal and cover up the unlawful payment scheme.  In January 2017, Cohen submitted a claim for reimbursement to the Trump Organization, seeking reimbursement for the $130,000 that he had paid Clifford, as well as a $35 wire fee and $50,000 in unspecified “tech services” for campaign-related technology work, for $180,035 in total. Two executives of the Trump Organization fraudulently booked the company’s reimbursement of Cohen as payment for legal services, rather than reimbursement for expenses paid, and they “grossed up” his $180,035 claim to $360,000 so that he would receive the full $180,035 (if not more) after his personal income taxes were deducted. The Trump Organization also added a $60,000 “bonus,” bringing the total to $420,000. Finally, rather than a single reimbursement payment, the $420,000 was misleadingly paid in 12 monthly installments of $35,000 each, for which Cohen submitted fraudulent invoices for “legal services.” Each month, Cohen sent an invoice for $35,000 stating, “Pursuant to the retainer agreement, kindly remit payment for services rendered” in that month, even though there was no retainer agreement and he had provided no legal services to the company.

Over the course of 2018, Trump and Cohen, both directly and through agents, worked to suppress the story of the payment to Clifford via false or misleading public statements. On February 13, 2018, Cohen falsely told the New York Times that he had used his own personal funds to pay Clifford, and that “[n]either the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.” In April 2018, Trump first falsely denied knowing about the payment, then acknowledged that Cohen represented him in connection with Clifford. On May 2, 2018, Rudy Giuliani, the president’s criminal defense lawyer, told the media that Trump had reimbursed Cohen as a “retainer” paid from Trump’s “personal family account.” The next day, Trump tweeted, falsely, that “Mr. Cohen, an attorney, received a monthly retainer, not from the campaign and having nothing to do with the campaign, from which he entered into, through reimbursement, a private contract between two parties.”


In his 1974 classic Impeachment: A Handbook, Professor Charles Black examined the question of when campaign tactics may rise to the level of an impeachable offense, and concluded: “Congress could do much more than it has done to make clear what the rules are to be.” Congress did, shortly thereafter, “make clear what the rules are to be”—it passed the Federal Election Campaign Act of 1974, the very statute that Donald Trump directed Cohen to violate.

Of course, not every violation of campaign finance law is an impeachable offense. But these violations certainly rise to that level. The president’s personal lawyer has admitted to a criminal conspiracy involving himself, Donald Trump, the Trump campaign, the Trump Organization and its executives, and others, continuing from the summer of the 2016 election through at least the first year of the presidency, to illegally influence the election and to cover up the violations.  For purposes of criminal law, Trump’s involvement could be framed as conspiracy to violate the Federal Election Campaign Act, conspiracy to defraud the United States by concealing illegal campaign contributions (both during the campaign and after), aiding and abetting, accessory after the fact, misprision of felony, obstruction of justice, and/or perjury (because his June 2017 financial disclosure form, sworn under penalty of perjury and covering a 16-month period that spanned the election, did not list any debt to Michael Cohen). But for impeachment purposes, these technical distinctions are unnecessary—the key point is that Trump directed Cohen to commit crimes and then covered it up.

The Framers understood that election misconduct could be an impeachable offense even if it occurred before the individual became president. In the constitutional debates over the impeachment power, George Mason asked rhetorically: “Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?” Mason was talking about a president who corrupted the electors of the Electoral College, but the same concern applies to other forms of corrupt campaign tactics. Furthermore, Mason’s question illustrates the point that while impeachment usually focuses on conduct that occurs in office, impeachment can also address corruptly obtaining the office in the first place. For example, in 2010, Judge Thomas Porteous was impeached and convicted for conduct, much of which occurred before he assumed federal office—including making false statements to the Senate and FBI in connection with his nomination and confirmation.

But even if there were any remaining doubt about the impeachability of these pre-inauguration crimes, the fact that Trump continued to participate in a cover-up after he became president resolves any questions. The criminal information against Cohen does not disclose whether Trump personally directed or knew all the details of this effort to conceal the payment in this precise manner, but even if he did not, criminal conspiracy does not require that every conspirator knows all of the details.


These are serious violations, and Cohen’s statement that Trump directed him to make these payments is a stunning admission. The personal lawyer to the president of the United States has stated in open court that the president directed him to violate federal law by making illegal campaign payments for the purpose of helping Trump win the 2016 presidential election. That is a ground for impeachment. And while the House Judiciary Committee might wish to develop additional facts in its hearings, there is more than enough factual evidence to start those hearings now.