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Did Trump break laws with hush-money payments? Here's what legal experts are saying

U.S. President Donald Trump continued denying wrongdoing as the White House struggled to manage fallout from allegations that he orchestrated a campaign coverup to buy the silence of two women who have claimed they had affairs with him.

As Trump denies breaking campaign finance laws, 6 experts weigh in

Adult film actress Stormy Daniels, left, and Playboy model Karen McDougal, right, allegedly received six-figure payouts from people connected to U.S. President Donald Trump to keep quiet about alleged extra-marital affairs they had with him. Some legal experts believe those payments violated campaign finance laws. (Matt Sayles/Associated Press, Evan Vucci/Associated Press and Dimitrios Kambouris/Getty for Playboy)

Donald Trump now owns up to knowing about multiple large-sum payouts in 2016 that went toward silencing two women who say they had extra-marital affairs with him.

The political fallout could be significant. But perhaps more concerning to the U.S. president is his risk of breaking campaign finance laws if a charging document filed in Manhattan federal court proves true. In an interview on Fox News that aired Thursday, the U.S. president was defiant.

"They weren't crimes," he protested.

This, despite his former personal lawyer Michael Cohen pleading guilty in federal court this week to serious campaign finance violations. Cohen says the crimes were tied to those payments and directed by Trump himself, expressly "for the principal purpose of influencing the election."

The first round of hush money, $150,000 US, went to former Playmate model Karen McDougal three months before the November 2016 election. The second sum, $130,000, was wired to the porn actress Stormy Daniels, whose real name is Stephanie Clifford, about two weeks before election day.

The president made a lot of claims. In interviews with CBC News, six election-law experts weigh in. The experts are:

  •     Bradley Smith, former chairman of the Federal Election Commission
  •     Charles Spies, head of national political law at Clark Hill in Washington, D.C.
  •     Edward Foley, head of election law at Ohio State University's Moritz College
  •     Sam Isaacharoff, Reiss Professor of Constitutional Law at New York University
  •     Dan Tokaji, author of Election Law in a Nutshell
  •     Ciara Torres-Spelliscy, Stetson University election law professor

On Trump arguing that the money didn't come from his campaign:

FOLEY: It doesn't matter where the source was; what matters is intent. The fact it came from personal funds doesn't immunize him from criminality, but it could be a subsidiary fact to the ultimate question of what was done for campaign purposes? Cohen asserts that Cohen made the payments at the candidate's direction for "purposes of influencing the campaign." If those facts are true, that would be a violation.

SPIES: If it wasn't the candidate's money but somebody else's personal money, it would have to be reported. And if corporate money were used, it would be an impermissible accepted corporate contribution that should have been reported.

TOKAJI: Regardless of whether they were from Mr. Trump's personal funds or from some other source, there's an obligation to disclose. To report expenditure or contributions, as the case may be. That wasn't done.

SMITH: If they're not campaign expenditures, they're not subject to disclosure. My view is that this is not a campaign expenditure, and once you hit that point, it doesn't matter how you paid for it. 

Michael Cohen, Trump's former lawyer, pleaded guilty Tuesday to eight charges, including campaign finance violations that he said he carried out in co-ordination with Trump. The president has accused Cohen of 'making up stories.' (Mike Segar/Reuters)

On personal expenses versus campaign expenditures:

ISAACHAROFF: What you have is a powerful man who [allegedly] has an affair and pays hush money to cover it. It's not pretty, not nice, but it's not a campaign finance crime. Now, if you take money from your campaign and use it for your personal expenses, though, is that a campaign finance violation? Under many circumstances — yes.

SMITH: You can't make an argument like I need to have my teeth whitened so I look good on the campaign trail, or I need a new suit. A part of the statute defines "personal use" as any abdication that would exist even if you weren't running for office. You've still gotta have clothes, still gotta keep your teeth, these are things that existed before you ran for office. The obligation has to exist solely because he's running for president. It's the idea of, 'I want to settle these lawsuits because I don't want this to hang over me.'

U.S. President Donald Trump has said that the stock market 'would crash' if he's ever impeached. (Kevin Lamarque/Reuters)

On the amounts of the payouts:

TORRES-SPELLISCY: As an individual, Cohen can only donate $2,700. The amount that was involved in the Daniels payment, $130,000, was far greater than that. So it's a campaign finance violation. This is deemed an in-kind contribution for the Trump campaign. And it's too big. It's just that simple. It blows through long-standing contribution limits at the federal level.

FOLEY: There are dollar limits. If it's the president's own money, he doesn't have to stick to the dollar amount. If he's doing it in order to win an election, though, he needs to disclose that to the Federal Election Commission as a campaign-related expense. But for Cohen as an individual, obviously, a six-figure payment would be well in excess of what an individual could give to a campaign.

SMITH: Typically, a candidate can spend whatever he wants on his own campaign. Now, if it's a reporting violation, an argument I hear is people saying the public had a right to know. Had they taken that approach, they would have probably recorded it as "legal services." So I'm not sure that the public actually would have gained much knowledge had it been disclosed.

On Trump claiming the campaign violations 'aren't even a crime':

SPIES: I believe the president's point is that Michael Cohen was forced into a broad plea agreement that includes some serious crimes, but the campaign finance piece of it would be very hard to prove at trial, or to even get an indictment on. But if Cohen was telling the truth and the government could prove what he said, it's a clear violation.

TORRES- SPELLISCY: President Trump and some of his surrogates made some outrageous claims that all candidates break campaign finance laws. I think that's demonstrably false. Parts of campaign finance are administrative, like getting certain filings in on time. That's generally dealt with by the Federal Election Commission, and usually they give you a chance to cure. You fix the filing, you might get slapped with a fine.

FOLEY: Campaign finance law is complicated. It is true that campaigns can run afoul of those rules in the ordinary course of receiving contributions and making expenditures. But if what Cohen said in court is true, and if he made the payment with campaign purposes with the full intent to violate the law, that's a very different thing. That's not run-of-the-mill. That's a distinction between what the Obama campaign and many others were caught up in, versus a knowing and wilful violation of the law.

Former Democratic presidential candidate John Edwards speaks outside a federal courthouse after his campaign finance fraud case ended in a mistrial. All charges against him have now been dropped. Some experts believe Edwards's case has parallels to Trump's current legal troubles. (Chuck Burton/Associated Press)

On a precedent-setting case:

FOLEY: The best way to understand this is to think about the John Edwards trial [Edwards was a 2008 Democratic presidential hopeful]. It involved the payment of money to a mistress to stay silent. The jury ultimately acquitted Edwards because it believed him that the payment was made, at least primarily, to keep the affair secret so his wife wouldn't know about it. The argument was it was a personal payment and not campaign-related, and therefore it didn't need to be disclosed as a campaign-related expense.

SPIES: The argument was the payments were made to avoid Edwards's wife finding out, and to avoid a personal embarrassment. And I believe the Trump Organization has a long history of vigorously fighting to protect its reputation. Mr. Trump likely would have tried to squelch these rumours, even without the campaign.

ISAACHAROFF: Edwards didn't get convicted. Trump's lawyers would have to say, despite Trump's repeated claims that he had nothing to do with this, that in fact Trump knew about it, did it, and lied about it, but nonetheless was doing it to protect Melania.

TORRES-SPELLISCY: The timing for Edwards was different. It was almost a year out from an election. That case ended up with John Edwards walking away without being found guilty of a finance violation.

On how Trump could have avoided this:

TOKAJI: If Mr. Trump spends $130,000 of his own money to pay for somebody's silence and reports that, then that wouldn't be a violation of federal campaign finance law. But it might sort of defeat the purpose [of paying hush money].

SPIES: If the payments would have been made irrespective of Trump being a candidate in order to protect the Trump family or Trump Organization's reputation, then they would not be considered a campaign contribution. The trick here is whether the payments would have been made even if Trump wasn't a candidate.

TORRES-SPELLISCY: I think if they had done this all above board, they reported the donation, the donation was within the four corners of the contribution limits, then that's probably fine. Individuals enter into non-disclosure agreements all the time, and they're not all illegal. But when you do it closely timed near a federal election and involve a federal candidate, that's when the election laws attach. Some of these payments were done just weeks before the federal election in 2016. The timing matters in this case.

Interviews were edited for length and clarity

About the Author

Matt Kwong

Reporter

Matt Kwong is a Washington-based correspondent for CBC News. He previously reported for CBC News as an online journalist in New York and Toronto. You can follow him on Twitter at: @matt_kwong

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