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.
Facts
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 he took at the direction of then-candidate Trump in connection with Trump presidential campaign.
Hush payment to suppress Trump’s affair with Karen McDougal
According to a nonprosecution agreement reached by the Department of Justice and American Media Inc. (AMI), the publisher of the National Enquirer, the scheme began as early as 2015. In August 2015, David Pecker, the CEO of AMI and a personal friend of Trump, met with Cohen and reached an agreement to help suppress unfavorable stories about Trump’s relationships with women by buying the rights to those stories and burying them.
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), and as explained in further detail in Free Speech For People’s complaint to the Federal Election Commission against American Media Inc. and the Trump campaign, 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.
Hush payment to suppress Trump’s affair with Stephanie Clifford (Stormy Daniels)
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 already 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.
Trump’s role in the payments and in the cover-up
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.” In his February 28, 2019 testimony to the House Oversight Committee, Cohen stated plainly that “Individual 1 is Donald J. Trump.”) As Cohen later explained to the House, Trump “was concerned with the effect that it had on the campaign and how women were seeing him and ultimately if he would have a shot in the general election.”
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”—likely payment for Cohen’s services, though services as a “fixer” rather than a lawyer—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. Trump or the “Donald J. Trump Revocable Trust” then sent him a check for $35,000. (Cohen provided two examples of these checks, including one signed by Trump himself.)
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.”
Why this is an impeachable offense
In his 1974 classic Impeachment: A Handbook—written in the shadow of the Nixon impeachment process, which ultimately stemmed from an unlawful attempt to influence the 1972 election—Professor Charles Black examined the question of when campaign tactics may rise to the level of an impeachable offense. Professor Black 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 (FECA), the very statute that Donald Trump directed Cohen to violate. That statute defines a “contribution” as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office,” and an “expenditure” as “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office.”
A key principle of FECA is that money that is contributed or spent “for the purpose of influencing an[] election for Federal office” is subject to legal requirements whether or not it passes through the official campaign committee’s accounts. Put another way, if someone contributes or spends money for the purpose of influencing an election for federal office, then it is subject to FECA’s contribution limits, source limits, disclosure requirements, and so on. Candidates and their funders cannot avoid the legal requirements of federal campaign finance law simply by spending the money from non-campaign funds–in fact, doing so will in most cases violate FECA even if the payments could have been legally made a different way.
Trump’s scheme involved concealing payments made for the purpose of influencing the election (illegal), a disguised campaign contribution over fifty times higher than the maximum allowed (illegal), the Trump Organization making (and the Trump campaign receiving) campaign contributions from a corporation (illegal), and an elaborate scheme to hide the payments from the Federal Election Commission, the bipartisan agency charged with enforcing the Federal Election Campaign Act (illegal). Trump’s primary public defense, that the money was paid from secret private accounts and not from publicly disclosed campaign funds, does not make the surreptitious payments lawful; it is part of the problem.
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. As explained in more detail in chapter 2 of our book The Constitution Demands It: The Case for the Impeachment of Donald Trump, for purposes of criminal law, Trump’s involvement could be framed for criminal law purposes 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.
Some argue that these payments did not have the sole purpose of influencing the election: they were also intended to deceive Trump’s wife. But that is not what the law requires. As the judge in the criminal case against former candidate John Edwards concluded, Congress did not limit the law to payments where “the sole or only purpose of the money was to influence the election,” because “[p]eople rarely act with a single purpose in mind.” Rather, Trump’s payments violate the law if (as Cohen’s testimony confirms) Trump had “a real purpose or an intended purpose to influence an election,” even if it was just “one of [his] purposes.” (As others have noted, the case that Trump’s has violated the law here is much stronger than in Edwards’ case.) Nor can Trump claim to be ignorant of the law; in 2012, he commented extensively on how he was not only familiar with the Edwards case, but also that he had discussed the legal issues with “a lot of very good lawyers.”
Moving beyond the statute to the broader issues of impeachment, as noted in chapter 2 of the book, 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. As confirmed by Cohen’s testimony to the House, Trump was fully aware of the critical details of the efforts to conceal these payments in this precise manner. Cohen emphasized that “everything had to go through Mr. Trump and it had to be approved by Mr. Trump.”
Finally, as noted by the respected early constitutional commentator Justice Joseph Story of the U.S. Supreme Court, the purpose of impeachment is “not so much designed to punish an offender, as to secure the state.” An impeachment inquiry and prosecutors’ investigations are bound by different rules—in the words of leading Framer (and later Supreme Court Justice) James Wilson, they are “founded on different principles, are governed by different maxims, and are directed to different objects.” The reason for an impeachment investigation into Trump’s illegal hush money payments to influence the 2016 election is not to punish him for past misconduct. Rather, it is to protect the 2020 election. If Trump, as a mere private citizen, was willing and able to use a complex fraudulent scheme to suppress unfavorable information in order to improve his electoral prospects, then as president he will not hesitate to use his now far greater powers. As Cohen—who knows Trump better than most—emphasized in his House testimony, “[g]iven my experience working for Mr. Trump, I fear that if he loses the election in 2020 that there will never be a peaceful transition of power.”
Conclusion
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.