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The legal threat to Trump in New York, explained

The office of Manhattan District Attorney Alvin Bragg (D) has extended an unwelcome invitation to former president Donald Trump: come offer testimony before a grand jury probing his business.

In the state of New York, potential targets of criminal investigations can request the opportunity to offer testimony to a grand jury, an alert that can serve as a sort of early-warning flag for potential indictments. Trump, like most of those who are invited to testify before possible indictment, is unlikely to actually show up for questioning. But the invitation itself suggests that Bragg’s office may be close to actually filing criminal charges.

One possible focus of an indictment is the 2016 payment of $130,000 to adult-film actress Stormy Daniels facilitated by Trump’s former attorney Michael Cohen. The focus of a grand jury’s work is sealed, but both The Washington Post and the New York Times have reported that the hush-money payment is a likely focal point of the probe.

With that in mind, it’s worth walking through what we know about the payment, how it violated federal law and what charges Trump might face. Let’s start at the beginning.

Despite Trump’s reiteration on social media this week that he “never had an affair with Stormy Daniels, nor would I have wanted to have an affair with Stormy Daniels,” it seems pretty obvious that he did, in fact, have an affair with Stormy Daniels, however brief.

In July 2006, the two attended a golf tournament at Lake Tahoe. Daniels says that Trump invited her to dinner, which meant joining him in his room at a local hotel. They chatted for a while, and Trump suggested perhaps he could get Daniels a slot on “The Apprentice.” They had sex.

That’s according to an interview Daniels gave In Touch magazine back in 2011. It didn’t run at the time, though, after Michael Cohen, then Trump’s infamously aggressive attorney, demanded it be spiked. After the affair became public as a result of news reports about the hush-money payments, In Touch published it in 2018.

Trump did offer an interesting bit of corroboration to the In Touch interview, however. In it, Daniels described a second, nonsexual encounter at a hotel in California. It occurred during the Discovery Channel’s Shark Week programming, which Trump commented on.

“He is obsessed with sharks. Terrified of sharks. He was like, ‘I donate to all these charities and I would never donate to any charity that helps sharks. I hope all the sharks die,’” Daniels told In Touch.

At a campaign event in 2020, that’s exactly what Trump himself said. Riffing on a comment from Michigan Gov. Gretchen Whitmer (D) about Shark Week, Trump said, “I have people calling me up: ‘Sir, we wanted to — we have a fund to save the shark. It’s called save the shark.’ I say ‘No, thank you. I have other things I can contribute to.’”

Again, Daniels revealed this aspect of Trump’s personality in a 2011 interview. There’s little reason to assume that her version of events is inaccurate.

It was certainly considered legitimate enough that, when there were rumblings about her going public with the story, Trump’s team went into action.

The apparent trigger was The Washington Post’s Oct. 8, 2016, release of the “Access Hollywood” recording, in which Trump is heard discussing groping women. The next day, an editor for the tabloid magazine the National Enquirer contacted Cohen to tell him that he had heard Daniels is shopping her story. There was a flurry of calls between Cohen and representatives for the Enquirer’s parent company, American Media Inc. (AMI), as well as calls between Cohen and Trump and Trump’s aide Hope Hicks. (AMI had already worked with Cohen to help bury another story about an alleged affair, that one involving Playboy model Karen McDougal.)

“I had gone into Mr. Trump’s office as I did after each and every conversation,” Cohen explained during a congressional hearing in 2019, “and he had told me that he had spoken to a couple friends and it’s $130,000. It’s not a lot of money, and we should just do it. So go ahead and do it. And I was at the time with [Trump Organization CEO] Allen Weisselberg where he directed us to go back to Mr. Weisselberg’s office and figure this all out.”

Over the next few days, a tentative agreement was reached. But no payment was made. With the Nov. 8 election approaching, Daniels again explored selling her story. The Enquirer editor pinged Cohen, apparently to warn him, and the agreement — between “David Dennison” (Trump) and “Peggy Peterson” (Daniels) — was signed on Oct. 28. Cohen had established an LLC called Essential Consultants earlier that month; he transferred $130,000 from a home-equity line of credit into the LLC and then to Daniels.

When the Wall Street Journal first broke the story about the payment, it was denied by both Trump and, in a statement shared by Cohen (then still Trump’s attorney), by Daniels. Asked by reporters about the allegations in April 2018, Trump denied knowing about the payment.

There was one major news outlet that apparently came close to breaking the story about the affair and proposed hush-money payment before the election. The New Yorker’s Jane Mayer reported in 2019 that Fox News reporter Diana Falzone had confirmation of the story but that the outlet wouldn’t run it. According to Falzone, the head of offered an unsubtle explanation for killing the story.

“Good reporting, kiddo,” she says Ken LaCorte told her. “But Rupert [Murdoch] wants Donald Trump to win. So just let it go.”

LaCorte denies having said this.

Only after Trump was elected president did the story come out. Eventually, while still working for Trump, Cohen admitted his role in it.

“Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford,” Cohen wrote in a statement in early 2018, using Daniels’s legal last name, “and neither reimbursed me for the payment, either directly or indirectly. The payment to Ms. Clifford was lawful, and was not a campaign contribution or a campaign expenditure by anyone.”

This, too, wasn’t true. Cohen was reimbursed, as another attorney for Trump, former New York mayor Rudy Giuliani, would later reveal to Fox News host Sean Hannity.

“When I heard Cohen’s retainer of $35,000 — when he was doing no work for the president — I said, that’s how he’s repaying it,” Giuliani said. “I don’t think the president realized he paid [Cohen] back for that specific thing until [his legal team] made him aware of the paperwork,” he added later, summarizing Trump’s reaction: “Oh, my goodness, I guess that’s what it was for.”

By that point, Cohen was already in significant legal trouble, with federal investigations looking both at his personal finances and his involvement in the payments. Cohen would eventually plead guilty to various charges. In December 2018, a sentencing memorandum from the U.S. Attorney for the Southern District of New York summarized how the repayment worked.

“At the instruction of an executive for the Company, Cohen sent monthly invoices to the Company for these $35,000 payments, falsely indicating that the invoices were being sent pursuant to a ‘retainer agreement.’ The Company then falsely accounted for these payments as ‘legal expenses.’ In fact, no such retainer agreement existed and these payments were not ‘legal expenses’ — Cohen in fact provided negligible legal services to Individual-1 or the Company in 2017 — but were reimbursement payments.”

Note that this comports with Giuliani’s description of Cohen as doing “no work” for Trump.

The person identified as “Individual-1” in the federal documents referred to an actor who was involved in the scheme but not indicted. Specifically, it referred to Trump. “The Company” is the Trump Organization.

You are likely aware that there are laws limiting how money can be spent on political campaigns. In an effort to reduce corruption, federal law mandates that spending by political campaigns involve only funds received within certain legal limits. Candidates raise money within those constraints and then can spend that money. There are exceptions; candidates can loan themselves as much money as they want, as Trump did in 2016. But otherwise campaign spending is subject to that restriction.

Outside groups can spend as much as they want, of course, though businesses are barred from spending to aid candidates. (One of the charges to which Cohen pleaded guilty was facilitating an illegal payment from a corporation — the payment from AMI to MacDougal. AMI cooperated with federal prosecutors.) But those outside groups can’t coordinate with campaigns, since that would obliterate campaign finance boundaries. After all, if Trump was limited in how much money he could take from Donor A but Donor A could give unlimited money to an outside group that took guidance from Trump’s campaign, there’s no point in the initial limit.

This, in essence, is what Cohen admitted to doing. He was clearly an agent of the campaign, working closely with Trump and discussing campaign issues with him.

What’s more, he and Giuliani made clear at different points that the payment wasn’t simply Trump as a private citizen hoping to make an embarrassing story go away. It was, instead, intended to actually aid Trump’s campaign.

“Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments,” the aforementioned memorandum reads. “In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1.”

“After Individual-1 was elected President,” it continues — again making clear who “Individual-1” was — “Cohen privately bragged to friends and reporters, including in recorded conversations, that he had made the payment to spare Individual-1 from damaging press and embarrassment.”

Speaking on “Fox & Friends” in May 2018, Giuliani made this point publicly.

“Imagine if [the story of the encounter] came out on October 15, 2016, in the middle of the last debate with Hillary Clinton,” he said. “Cohen didn’t even ask. Cohen made it go away. He did his job.”

The link between the campaign and the payment is clear.

There’s another important player here: the Trump Organization. The reimbursement to Cohen came through the business, as was documented in emails, among other things. In an email to The Post in 2018 — before the revelation about the reimbursements — former Federal Election Commission (FEC) general counsel Larry Noble explained that this implicated the business itself.

“The use of the Trump Organization email is evidence that Cohen’s services were, at least in part, being paid for by the Trump Organization,” Noble said in an email. “That would be an illegal corporate contribution to the campaign even if the company did not pay the $130,000.”

Which brings us to Bragg’s probe.

It is the FEC that’s responsible for policing campaign finance violations, not local prosecutors. What Bragg is focused on, according to reports, is how the Trump Organization recorded the payments it made to Cohen.

If its records list the repayments as “legal expenses,” which both the government and Giuliani say they weren’t, misdemeanor charges of falsifying business records could result. But if that falsification was in service of hiding another crime — say, a campaign finance charge — the charge could be a felony.

It’s not entirely clear how this would work. The New York Times reported that the crime believed to have been covered up by the alleged falsification is at the state level, not the federal one. In other words, it’s not the FEC allegation but, instead, an unclear violation of state law. This also appears to be focused on the actions of the business, not Trump himself.

Again, though, the nature of grand-jury proceedings is that they are secret. Prosecutors are not interested in giving Trump a sense of where their investigation is heading, meaning that they are similarly uninterested in tipping their hands to the news media.

We know that the payment was made and why. We know that it was facilitated by agents of the Trump Organization. We know how this led to criminal charges against Cohen, who then implicated Trump. We don’t know, though, how this overlaps with criminality in Manhattan itself.

There’s one more thing we know, though: Trump himself is keenly aware of the threat that Bragg’s investigation poses — whatever it is.

This post appeared first on The Washington Post

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