The Facts
In October 2016, Donald Trump’s Presidential campaign was in trouble. The “Access Hollywood” tape broke at the beginning of the month. It was followed by the threat of former Playboy Bunny Karen McDougal to reveal an affair with the candidate. David Pecker was the Chairman of the National Enquirer. He paid $125,000 to exclusively buy McDougal’s story in return for a non-disclosure agreement. Pecker buried the story, in what now is called a “catch-and-kill” deal.
We also know that Donald Trump had an affair with porn movie star Stormy Daniels. Later in October of 2016, Daniels threatened to go public (to the National Enquirer). Trump’s then-lawyer and fixer Michael Cohen set up a “dummy” Delaware corporation. He transferred $131,000 to that corporation from a personal loan. The corporation then wrote a $130,000 check to Daniels, in exchange for a non-disclosure agreement.
We also know that Cohen asked Trump to reimburse him for the $130,000, plus $50,000. The Trump organization doubled that fee to $360,000. Ultimately, they paid Cohen $35,000 a month for twelve months, for a total of $420,000. Trump wrote that off as “business expenses” for the purpose of New York State taxes (CBS).
The voting public didn’t know about McDougal or Daniels prior to the election, one of the closest in American history. They did know that the FBI reopened the email investigation of Hillary Clinton ten days before election day. That investigation concluded eight days later, but millions of Americans voted early. Clinton won the popular vote, but lost the Electoral College by a mere 74,744 popular votes. (See this essay from 2017).
In 2021 David Pecker paid a $187,500 fine to the Federal Elections Commission (FEC) for illegal campaign contributions for the McDougal “catch and kill” deal (Politico).
The Law
The FEC made it clear that the “catch-and-kill” non-disclosure agreements are a campaign benefit, that should be claimed as a donation. It’s not that Trump couldn’t donate $130,000 to his own campaign, or even $420,000. But that donation should be claimed as a campaign expense.
And the State of New York has a long list of examples of “falsification of business records”. Certainly claiming an illegal campaign donation as a business expense, like the Stormy Daniels pay-out, would fall into that category.
Michael Cohen pled guilty to the crime of concealing this expense/benefit, as part of a series of Federal crimes that resulted in a three-year jail sentence. In the Federal prosecutor’s indictment, it was clear that Cohen did the actions with both the consent and involvement of “Individual One”, who was never named.
The Department of Justice has a policy of not charging a “sitting” President, and in the past, wouldn’t even name a President involved in possible charges (Nixon, the fifth “unindicted co-conspirator”). But it was clear that “individual one” was Donald Trump.
After Cohen pled guilty, the Justice Department under Attorney General Bill Barr, ended the investigation.
Falsifying a business record is a misdemeanor offense under New York State law. But falsifying to cover a further crime (campaign finance fraud) raises the offense to a felony. The reality is that Manhattan District Attorney Alvin Bragg has a “slam-dunk” case on the misdemeanor offense, and a solid set of circumstances leading to the underlying campaign finance fraud.
The Indictment
A Grand Jury determines charges (indictments) in New York. The District Attorney presents evidence to Twenty-three citizens. A majority then decides if there is probable cause that crimes were committed. In fact, New York also allows a potential defendant to present some evidence to the Grand Jury, to mitigate possible charges. Monday a lawyer representing Mr. Trump, Bob Costello, testified. In public statements after, he went to great lengths to lay blame for all of this on Cohen, rather than Trump.
The Grand Jury is meeting again today, either to hear more testimony, or a presentation of possible charges from the District Attorney’s office. In the next couple of days history will be made, no matter what decision the Jurors make. If they decide to indict Donald Trump, it will be the first time in US History that a former President faces charges.
So we wait.
