“I pledge to be a better man tomorrow, and will never, ever let you down.”
That was what Donald Trump said on Oct. 7, 2016, as part of his video apology for the now infamous Access Hollywood tape. That day, Republican leaders—including Senate Majority Leader Mitch McConnell, House Speaker Paul Ryan, and Trump’s own running mate Mike Pence—had all rebuked his behavior on the tape. In a late-night Facebook Live video, Sen. Mike Lee (R-UT) called on Trump to “step aside.”
The very next day—the first day of Trump’s new era as a “better man”—his attorney Michael Cohen began negotiating on Trump’s behalf to keep a porn star quiet about a sex romp that she and Trump had four months after his wife gave birth to his youngest son.
That’s the context for the events that unfolded over the next few months, and which are now widely expected to yield the first-ever criminal indictment against a former U.S. president.
Unlike in 2016, however, Trump’s allies aren’t turning on him. Instead, they’re trying to brush off the pending charges from Manhattan District Attorney Alvin Bragg as “fake,” “partisan,” “bullshit,” and “bizarre.”
Among the challenges, some of these defenders say, is proving Trump’s intent—a surreal dilemma that has flummoxed legal analysts for years.
“Bragg would have to prove that Trump not only understood the complex and convoluted campaign laws that few people comprehend, but that he intended to violate them,” Fox News commentator Greg Jarrett wrote on Monday.
But when it comes to charging Trump, that perennial fear might actually be the least of Bragg’s concerns.
That’s because, back in 2000, Trump submitted a sworn affidavit to the Federal Election Commission demonstrating a complex understanding of some of the same campaign finance laws that now appear central to Bragg’s case.
“I neither reimbursed, nor caused any other person to reimburse, any employee of Trump Hotels & Casino Resorts, Inc. or its subsidiaries for his or her contribution to Gormley for Senate,” Trump wrote at the time.
The affidavit, submitted as part of an FEC investigation into a Trump-hosted fundraising event for a Senate candidate, also contained sworn statements that Trump had acted “solely in my individual capacity”—not as a corporate official—and “took no action, of any nature, kind or description, to compel or pressure any employee” to make a donation.
That case was fairly complex for a layperson, and it forced Trump to develop and express a sophisticated understanding of specific federal campaign finance laws. By the end of the ordeal, Trump would have been intimately familiar with why corporations and third parties (“straw donors”) could not make contributions—including in-kind contributions—to candidates for federal office.
As campaign finance law expert Brett Kappel observed in the Wall Street Journal in 2018, the affidavit “indicates that Trump had a very thorough understanding of federal campaign finance law, especially regarding what he could and could not legally do when raising money for a federal candidate.”
Ultimately, that affidavit helped to convince the FEC to drop the case.
Those elements hew closely to the allegations Trump himself would face almost 20 years later. That’s when Cohen, allegedly at Trump’s direction, paid porn star Stormy Daniels $130,000 in hush money to keep her story out of the press just ahead of the 2016 election.
The Trump Organization later allegedly reimbursed Cohen in a series of monthly payments, falsely recording them as “legal expenses,” according to federal prosecutors. (Some of the hush money checks were signed by Trump Organization officials, including his oldest adult child, Donald Trump Jr.)
Compare that affidavit, given under penalty of perjury, to Trump’s tweets after his lawyer, Rudy Giuliani, admitted on Fox News that Trump had indeed reimbursed Cohen
“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, known as a non-disclosure agreement, or NDA,” Trump tweeted, adding, “Money from the campaign, or campaign contributions, played no roll [sic] in this transaction.”
Ironically, Trump—who could have given as much as he wanted to his own campaign—would very likely not be in legal hot water if he had disclosed his payments as campaign contributions. It’s just that doing so would have likely revealed the allegation to the public.
But Cohen’s payment constituted an excessive in-kind contribution to the Trump campaign, and the reimbursement was an illegal corporate contribution, according to prosecutors. Those off-the-books payments, coming on the heels of the Access Hollywood scandal, could have made a difference in the election, which was ultimately decided by fewer than 70,000 votes.
Cohen initially denied the reimbursement. But in 2018, he pleaded guilty to the excessive donation as well as causing a corporate in-kind contribution, alleging the whole scheme was carried out with Trump’s full knowledge and at his direction.
Today, Trump defenders are reheating arguments from 2018, arguing that these payments weren’t illegal. And even if they were, they say, the statute of limitations has expired. (It hasn’t.) And even if it hasn’t, Bragg only has a misdemeanor charge. And if he does bring a felony charge, it’s a trumped-up political prosecution.
As with the arguments about Trump’s knowledge of campaign finance law, legal experts say, those criticisms don’t hold up. That doesn’t mean Bragg’s case is a slam dunk, however. In fact, he could find himself out on a limb. (Bragg, an elected Democrat who reportedly had doubts about the case early on, initially tabled the “zombie” investigation while he pursued tax charges against the Trump Org, resulting in a $1.6 million fine and the imprisonment of Trump’s longtime CFO.)
But not necessarily.
Paul S. Ryan, an expert in campaign finance law who in 2018 filed an FEC complaint about the arrangement, told The Daily Beast the campaign finance violations were an open-and-shut case.
“A contribution is money or anything of value given to a candidate. These payments meet those definitions,” Ryan said.
“Initially Michael Cohen paid Daniels, then the Trump Org reimbursed him. At that point, the Trump Org became a contributor to the Trump campaign, which corporations are prohibited from doing,” he explained.
Ryan also responded to Trump defenders who argue that he may have made the Daniels payments regardless of the campaign, which would have qualified them as personal expenses.
“These payments would not have been made but for the election, and were only made as the election drew near, right on the heels of the leaked Access Hollywood audio,” he pointed out. (Trump was initially so rattled that he feared the tape could cost him the election, according to Kellyanne Conway’s memoir.)
Prosecutors alleged that Cohen and the National Enquirer cooked up the possible hush-money contingency plan two months after Trump announced his bid, in a meeting Trump personally attended, according to The Wall Street Journal and numerous other outlets.
The FEC’s Office of General Counsel agreed with Ryan’s analysis, recommending that the commissioners find reason to believe that Trump and his company violated the law. The Republican commissioners, however, declined to investigate, citing a pending statute of limitations and the fact that Cohen—though not Trump—had already been punished for the crime.
Brendan Fischer, a campaign finance expert and deputy director of watchdog group Documented, told The Daily Beast that “nothing is particularly new” in the counterarguments today.
“The contrarians are trying to raise the same arguments they were back in 2018 when this came to light. The fact is that Cohen has already pled guilty to a campaign finance violation arising from the hush money payments. That has been established,” Fischer said.
Cohen’s credibility has been plagued by his history of lying, and will certainly figure into any possible trial—though there’s reason to trust him on Trump. On Monday, Trump claimed Cohen committed perjury, though he was not charged under Trump’s own Justice Department.
“This shows why transparency is such a key requirement in our election laws,” Fischer said. “The payments deprived voters of information about the affair, and the way they were structured further deprived voters of the information that Trump had paid to keep her quiet.”
Reached for comment, a Trump spokesperson provided a statement calling the looming indictment a “threat,” a “witch hunt,” and “simply insane,” while also calling it a “clear exoneration” of Trump “in all areas.”
“The Manhattan District Attorney’s threat to indict President Trump is simply insane. For the past five years, the DA’s office has been on a Witch Hunt, investigating every aspect of [former] President Trump‘s life, and they’ve come up empty at every turn—and now this. The fact that after their intensive investigation the DA is even considering a new political attack is a clear exoneration of [former] President Trump in all areas. [Former] President Trump was the victim of extortion then, just as he is now,” the statement said, without specifying the alleged extortionist.
“It’s an embarrassment to the Democrat prosecutors, and it’s an embarrassment to New York City,” the statement concluded.
Cohen declined to comment for this article.
Hyperbole aside, the Trump team isn’t alone in questioning the strength of Bragg’s case. As some details have dripped out in recent reports—albeit anonymously—a number of legal experts have expressed concern that the DA might be overplaying his hand.
While it seems clear that Bragg has Trump dead to rights on making false business statements—listing Cohen’s reimbursements as “legal expenses”—that’s a misdemeanor. To kick it up to a felony under New York law, Bragg would have to attach the false statements to “an intent to commit another crime or to aid or conceal the commission thereof.”
That’s where the case gets sticky. The campaign finance violation that sent Cohen to jail was a federal statute. But Bragg, as a local prosecutor, can only bring state and local charges. Because Trump was a candidate for federal office, most state statutes don’t apply—and the ones that might would likely be preempted by well-established federal doctrine.
There are, however, a few theories for how Bragg can get there.
Some are stronger than others, according to Emily Bradford, a former prosecutor who investigated fraud and corruption with both the New York Attorney General’s Office and the Manhattan DA.
“When you get to the felony level, you have the additional intent to commit or conceal another crime on top of that. So it’s a harder charge to prove, because it has so many elements to it,” Bradford told The Daily Beast. “In my experience, it’s almost always a charge you bring with an underlying crime.”
Bradford speculated that one way Bragg could get there would be not to attach Trump’s false statements to furthering another crime that he himself committed, but to furthering the crime Cohen was already convicted of.
“If they were going to trial on this, they would have to prove that the false business records were in furtherance of another crime. Nothing in the false business records statute suggests that you couldn’t do that with a federal crime,” Bradford said. “You would still have to present evidence of the crime, of course, and you would have to prove an intent to actually commit or conceal that crime.”
“A step in furtherance of Cohen’s payment,” she added, “could arguably be creating the false business record.”
This would sidestep some of the tricky statutory and jurisdictional questions. It would require Bragg to connect Trump’s actions knowingly to Cohen’s crimes, for which there are reams of readily available evidence, including the DOJ’s filings against Cohen, witnesses such as Daniels and the National Enquirer’s David Pecker, and the Trump Organization’s business and tax records.
While the DA would still have to convince the jury of Trump’s involvement and intent, and of the fact that Cohen violated the law, Bradford said, the documents in Cohen’s case “made it clear that Cohen committed a crime, and they also made a strong case that Trump was directly involved.”
A person familiar with the DA’s investigation agreed that this move was possible.
“There’s nothing on the face of the statute that would preclude that,” the person said. “If Person 1 falsifies business records with the intent to conceal a crime by Person 2, that would qualify. Trump’s argument would have to be a very narrow statutory or interpretational argument that ‘crime’ is a defined term.”
Under New York Penal Law, a “crime” isn’t explicitly related to state violations. And New York has previously cited federal crimes to kick the false business records violation up to a felony.
There’s also the possibility that Trump’s falsification of business records helped him further a tax crime—taking a business cost deduction for what should have been a personal expense.
Bradford said that crime could be as minor as filing a false return that claims a false deduction—a misdemeanor—or making an underpayment based on the amount of the deduction, which in this case could have run as high as $420,000. (Trump paid only $750 in taxes for 2016.)
“Tax law crimes are hard to prove against Trump, largely because it would be hard to connect any particular statement in his voluminous tax returns to him personally and because, for a false deduction to be material in the context of his tax returns, it would likely have to be very large,” she said.
There’s also a possibility that, despite the federal preemption doctrine, prosecutors will invoke a state campaign finance law—New York Election Law § 17-152, “conspiracy to promote or prevent election.”
“Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor,” that statute reads.
As a group of legal experts wrote at Just Security on Monday, the question here is whether Trump and Cohen used “unlawful means,” and whether that broadly defined term—while not enumerating a crime per se—would also be preempted by federal law.
David Keating, president of the Institute for Free Speech, dismissed the idea.
“If there is any relevant provision of state law, it wouldn’t matter as the Federal Election Campaign Act would preempt it. See for example, 52 USC 30143, which says in part that ‘the provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office,’” Keating told The Daily Beast.
Fischer was also skeptical.
“This would suggest that every time federal authorities don’t prosecute a federal campaign finance violation, then state authorities can step in and use that federal violation to indict more people,” he said.
Jerry Goldfeder, a New York campaign finance expert at Stroock LLP, didn’t dismiss the approach on its face, but warned against overeager speculation.
“Federal election law has exceptions to the federal preemption doctrine. DA Bragg will first have to determine whether there’s a state law violation or intent to violate the state law and then determine whether it fits within one of the exceptions,” Goldfeder told The Daily Beast. “But first let’s see what the indictment actually alleges.”