Trump Will Need a Better Defense Than This

(Bloomberg Opinion) -- President Donald Trump is badly in need of a defense to the assertion by his longtime personal lawyer, Michael Cohen, that Trump directed him to commit a crime. The core of what the president and his proxies have said so far amounts to something like this: Trump didn’t know about Cohen’s payoffs to the two women who said they had sexual encounters with Trump until those payments happened. When he heard about it, he paid back Cohen, from his personal accounts, essentially contributing to his own campaign.

This defense is actually an ingenious effort to wriggle out of a terrible situation. It may help Trump obfuscate the issues enough to confuse the public. Given that he must be worried more about a potential impeachment debate than a criminal trial after he leaves office, that may be the main point.

But Trump’s defense has two serious problems: It isn’t true. And if it were true, it still wouldn’t absolve Trump of criminal liability as a matter of law.

Start with the timing. Trump told Ainsley Earhardt of “Fox and Friends” on Wednesday that he learned of the Cohen payments “later on.” Those words are a little vague, but they seem to mean that Trump knew about the payments only after Cohen had made them.

Trump has to say he lacked advance knowledge of the payments to deny Cohen’s statement Tuesday, when entering his guilty plea, that he made the payoff at Trump’s “direction.”

According to the Department of Justice, the payments were a federal crime, amounting to illegal campaign contributions of $130,000 and $150,000. If Trump directed Cohen to commit a felony, he is himself guilty of a felony — either as an accomplice, a co-conspirator or both.

So Trump wants to suggest that he didn’t direct Cohen, thereby avoiding liability.

The weight of the available evidence suggests that Trump’s assertion isn’t true. The strongest evidence is the tape that Cohen made of himself discussing with Trump the payoff to Playboy model Karen McDougal — a conversation that sounds very much like it took place before the payoff. On it, the two discuss “financing” the payoff to McDougal. That’s advance knowledge.

The tape might be admissible in a court of law. In any case, it’s already admitted in the court of public opinion. And it could be used in an impeachment proceeding, where Congress sets the rules of evidence.

Then there’s the agreement between Trump and Stephanie Clifford, the porn star better known as Stormy Daniels. How could Trump agree not to speak about Daniels if he didn’t know there was an agreement being made?

Even if it were true that Trump didn’t know about the payoff in advance, he would still have been guilty of a crime by paying Cohen after the fact. At a minimum, Trump would have been participating in hiding Cohen’s crime — which would make him an accessory after the fact. Possibly he would also have been a co-conspirator in a scheme to evade campaign finance laws and hide the payoff.

That brings us to Trump’s repayment to Cohen — and the question of its source. Trump told Earhardt: “They weren’t taken out of the campaign finance, that’s the big thing. … They didn’t come out of the campaign, they came from me.”

He added: “In fact, my first question when I heard about it was, did they come out of the campaign, because that could be a little dicey. And they didn’t come out of the campaign and that’s big.”

On the surface, this insistence that Trump repaid Cohen personally, rather than from the campaign, is odd. If the campaign had paid off McDougal and Daniels directly, that might not have been an election-law crime at all. The hush money could potentially have been a lawful (if unethical) campaign expense.

What’s more, assume Cohen made an illegal campaign contribution to Trump. The correct legal course would then have been for the campaign — not Trump — to refund the money to Cohen. Admittedly, that would have had to have been properly reported and accounted for, not hidden. But a campaign-based repayment to Cohen might still have been legally preferable to one from Trump.

Of course, it’s criminal to spend campaign funds on “personal use.” Maybe Trump’s worry about a “dicey” expenditure is based on the idea that a campaign payoff would have been a personal expense.

Here’s where things get legally creative. By saying that he paid back Cohen, Trump may be suggesting that he himself made the $130,000 and $150,000 contributions to his own campaign. On CNN’s “AC 360,” law professor Alan Dershowitz suggested that this might not have been a campaign finance violation, presumably because there is a constitutional right to spend money on your own election.

In fact, a candidate’s own campaign contributions must be reported by law. This contribution wasn’t. (It is true that the amount is unlimited.)

Furthermore, Trump himself didn’t pay Cohen. The Trump Organization did. The Trump Organization is an LLC. Trump may think the organization is the same as he is, but in the eyes of election law, an LLC donation has its own rules. It isn’t necessarily the same as a candidate’s expenditure of personal funds.

Regardless, paying back Cohen after his crime doesn’t make the crime go away.

Trump in theory could claim that Cohen never really made the payments, because he always intended to repay him. But that would require him to say he knew about the payments in advance — which he is busy now denying.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

©2018 Bloomberg L.P.