FEC Drops Case Against Trump for Alleged Hush Money Payments

Blast from the past. The saga of former President Donald Trump paying adult entertainer Stormy Daniels to keep quiet about an alleged affair—and Trump lawyer Michael Cohen, who arranged the payment, going to prison for it—seems like it happened a lifetime ago at this point. But the Federal Election Commission (FEC) has only now announced a decision to formally drop the matter, which the agency had been exploring as a possible violation of election law.

To refresh your memory: Shortly before the 2016 presidential election, Cohen paid Daniels $130,000 and funneled $150,000 through the National Enquirer to former Playboy model Karen McDougal. The payments were meant to keep tales of these women’s trysts with Trump from getting out. Cohen would later admit to making these payments (“I felt it was my duty to cover up [Trump's] dirty deeds,” Cohen said) and be sentenced in 2018 to three years in prison for tax evasion, lying to Congress, and campaign finance law violation.

Trump initially claimed to know nothing about the payments. Later he copped to their existence but noted that he paid Cohen with his own money, not campaign funds, and swore that this was “a simple private transaction,” not a criminal violation. Whether it was really the former or the latter is indeed “a little dicey,” as Trump put it to Fox News back in 2018. Reason‘s Jacob Sullum delved into the finer legal points here and here.

“In December 2020, the F.E.C. issued an internal report from its Office of General Counsel on how to proceed in its review. The office said it had found ‘reason to believe’ violations of campaign finance law were made ‘knowingly and willfully’ by the Trump campaign,” The New York Times reports.

But the commissioners ultimately decided not to go forward with proceedings against Trump, announcing that decision yesterday. Two FEC commissioners—both Democrats—had voted to go forward with the case, while two Republican commissioners voted to dismiss. Another commissioner recused himself and another was absent for the vote.

“The hush money payment was done at the direction of and for the benefit of Donald J. Trump,” Cohen told the Times in response. “Like me, Trump should have been found guilty. How the F.E.C. committee could rule any other way is confounding.”

In an April 26 explanation of their reasoning, Sean J. Cooksey and James E. “Trey” Trainor III—the commissioners who voted to dismiss—wrote that “the public record is complete with respect to the conduct at issue in these complaints, and Mr. Cohen has been punished by the government of the United States for the conduct at issue in these matters. Thus, we concluded that pursuing these matters further was not the best use of agency resources.”

They added that they were “facing an extensive enforcement docket backlog resulting from a prolonged lack of a quorum, and these matters were already statute-of-limitations imperiled.” (As of December 9, 2020, “there were 446 matters before the agency, of which 275 were awaiting Commission action, of which at least 35 were statute-of-limitations imperiled,” they pointed out.)

In a separate statement, FEC Chair Shana M. Broussard and Commissioner Ellen L. Weintraub wrote that they agreed with their Republican colleagues “that the Commission’s interests were vindicated as to Cohen, and therefore did not move to support a reason to believe finding for Cohen.” However: 

Where we disagreed with those colleagues was in their decision to dismiss the remaining allegations.

Their Statement of Reasons is notably devoid of any explanation that specifically addresses their votes to dismiss the allegations against Trump, the Committee, and the Trump Organization. We voted to support OGC’s recommendations to find reason to believe that Trump and the Committee knowingly and willfully accepted an excessive contribution from Cohen and a prohibited corporate or excessive contribution from the Trump Organization, that the Committee knowingly and willfully filed false disclosure reports, and that the Trump Organization knowingly and willfully made a corporate or excessive contribution through its reimbursements to Cohen.

There is ample evidence in the record to support the finding that Trump and the Committee knew of, and nonetheless accepted, the illegal contributions at issue here. Indeed, Cohen provided testimony under penalty of perjury that Trump not only knew about the payment but himself directed Cohen to orchestrate the scheme. And the Commission’s interests in seeing the law enforced with respect to Trump, the Committee, and the Trump Organization have in no way been vindicated.

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