NEW YORK — The sentencing of Michael Cohen, President Donald Trump’s former personal lawyer, brought a perilous investigation into the president’s campaign one step closer to the Oval Office.
Though Cohen broke down during his sentencing hearing Wednesday, Trump remained uncharacteristically quiet, his Twitter feed still while he ignored shouted questions about his former attorney at a White House event. But Trump has been far from silent during the monthslong Cohen saga, with the president’s explanations frequently shifting as his legal exposure grew.
Since the spring, Trump has gone from denying knowledge of any payments to women who claim to have been mistresses to apparent acknowledgment of those hush money settlements — though he claims they wouldn’t be illegal in any case. But both Cohen and federal prosecutors said the payments were made at Trump’s direction to fend off damage to his White House bid, an apparent campaign finance violation.
Though prosecutors have implicated Trump in a crime, they haven’t directly accused him of one, and it’s hardly clear that they could bring charges even if they want to because of Justice Department protocol. Nonetheless, Trump’s evolving explanations have clouded the public understanding of what occurred and are running head-on into a problematic set of facts agreed to by prosecutors, Cohen and a media company that has acknowledged participating in the hush money scheme to aid the president’s campaign.
“You now have a second defendant or group of defendants saying that these payments were made for the primary purpose of influencing the election, and that it was done in coordination with Trump and his campaign,” said Rick Hasen, an election law expert at the University of California at Irvine.
Trump’s first explanation of the payment that would eventually help lead Cohen to a three-year prison sentence came at 35,000 feet over West Virginia.
Returning to Washington on Air Force One, Trump on April 6 for the first time answered questions about the reports of $130,000 in hush money given to adult film actress Stormy Daniels, issuing a blanket denial to reporters while saying they would “have to ask Michael Cohen.”
Three days later, the FBI raided Cohen’s office, seizing records on topics including a $130,000 payment to Daniels. Furious, Trump called the raid a “disgrace” and said the FBI “broke into” his lawyer’s office. He also tweeted that “Attorney-client privilege is dead!”
The raid was overseen by the U.S. attorney’s office in Manhattan and arose from a referral from special counsel Robert Mueller, who is investigating Russian election interference. At the time, Cohen had said he took out a personal line of credit on his home to pay Daniels days before the 2016 election without Trump’s knowledge.
Later that month in a free-wheeling “Fox & Friends” interview, Trump acknowledged that Cohen represented him in the “crazy Stormy Daniels deal.” In May, Trump and his attorneys began saying Cohen received a monthly retainer from which he made payments for nondisclosure agreements like the one with Daniels. In a series of tweets, Trump said those agreements are “very common among celebrities and people of wealth” and “this was a private agreement.”
People familiar with the investigation say Cohen secretly recorded Trump discussing a potential payment for Karen McDougal, another woman who alleged an affair with the president, two months before the election. On the tape, Cohen is heard saying that he needed to start a company “for the transfer of all of that info regarding our friend David,” a possible reference to David Pecker, Trump’s friend and president of American Media Inc., the parent company of the National Enquirer.
When Cohen began to discuss financing, Trump interrupted him and asked, “What financing?”
“We’ll have to pay,” Cohen responded.
Prosecutors announced Wednesday that AMI acknowledged making one of those payments “in concert” with the Trump campaign to protect him from a story that could have hurt his candidacy. The company avoided prosecution under a deal with prosecutors.
In August, Cohen pleaded guilty to campaign-finance violations and other charges, saying he and Trump arranged the payment of hush money to Daniels and McDougal to influence the election. That next day, Trump argued that making the payments wasn’t a crime and that the matter was a civil dispute, then took a swipe at his former employee.
“If anyone is looking for a good lawyer, I would strongly suggest that you don’t retain the services of Michael Cohen!” he tweeted.
Earlier this week, Trump compared his situation to one involving President Barack Obama’s 2008 campaign. The Federal Election Commission, which typically handles smaller campaign-finance violations, where the actions aren’t willful, with civil penalties that are typically fines, docked the Obama campaign $375,000 for regulatory civil violations.
But legal analysts said the accusations against Trump could amount to a felony because they revolve around an alleged conspiracy to conceal payments from campaign contribution reports — and from voters. It remains unclear what federal prosecutors in New York will decide to do if they conclude that there is evidence that Trump himself committed a crime.
The Justice Department, in opinions issued by its Office of Legal Counsel, has said a sitting president cannot be indicted because a criminal case would interfere with the duties of the commander in chief. Prosecutors in the Southern District of New York, and with Mueller’s office, would presumably be bound by that legal guidance unless the Justice Department were to somehow nullify the opinions.
Politically, Trump’s shifting claims could harm his credibility with voters, but legally they may not make much of a difference.
“It’s not clear to me that he’s made any false statements in legal documents that could open him to liability for perjury,” Hasen said.
For the payments themselves to be a crime rather than a civil infraction, prosecutors would need to show that Trump knew that what he was doing was wrong when he directed Cohen to pay the women and that he did so with the goal of benefiting his campaign.
Trump has not yet laid out a detailed defense, though he could conceivably argue that the payments were made not for the purposes of advancing his campaign but rather to prevent sex stories from emerging that would be personally humiliating to him and harm his marriage.
That argument was advanced by former Sen. John Edwards, a North Carolina Democrat, in a similar campaign finance case that went to trial. But that may be tougher for Trump than it was for Edwards given the proximity of the president’s payment to the election — timing that, on its face, suggests a link between the money and his political ambitions.
Still, the cases aren’t always easy, as proven by the 2012 trial of Edwards. Jurors acquitted Edwards on one charge of accepting illegal campaign contributions, but couldn’t reach a verdict on the five remaining counts including conspiracy and making false statements. Prosecutors elected not to retry Edwards, the Democratic vice presidential nominee in 2004 and a candidate for president in 2004 and 2008.