Transforming Stormy Daniels’ Hush Payment Into a Felony Would Reinforce Trump’s ‘Witch Hunt’ Complaint

It looks like Manhattan District Attorney Alvin Bragg, a Democrat, intends to pursue criminal charges against former President Donald Trump. But the charges he seems to have in mind, based on a 2016 hush payment to porn star Stormy Daniels, are so iffy that they reinforce Trump’s reflexive complaint that he is, as always, the victim of a long-running Democratic “witch hunt.”

Daniels claims she had a sexual affair with Trump in 2006, when he was married to his current wife, former First Lady Melania Trump. Although Trump denies the affair, he arranged a $130,000 payment to Daniels in the fall of 2016 to keep her story out of the press. There is nothing inherently illegal about that payment. But Michael Cohen, the Trump lawyer who paid off Daniels and was reimbursed by Trump, pleaded guilty in 2018 to violating federal law by making an excessive campaign contribution.

The theory underlying that charge was that Cohen “contributed” the hush money at Trump’s behest for the “principal purpose of influencing [the] election,” as opposed to avoiding personal embarrassment for Trump or sparing Melania Trump’s feelings. As former Federal Election Commission Chairman Bradley Smith noted at the time, that interpretation was open to question.

“The best interpretation of the law is that it simply is not a campaign expense to pay blackmail for things that happened years before one’s candidacy—and thus nothing Cohen (or, in this case, Trump, too) did is a campaign finance crime,” Smith wrote in a 2018 Reason essay. “But at a minimum, it is unclear whether paying blackmail to a mistress is ‘for the purpose of influencing an election,’ and so must be paid with campaign funds, or a ‘personal use,’ and so prohibited from being paid with campaign funds.”

That lack of clarity is important in assessing Trump’s criminal liability for soliciting what federal prosecutors (and Cohen) described as an excessive campaign donation. To convict Trump of that offense under federal law, the government would have to prove that he “knowingly and willfully” flouted the rules. The difficulty of making that case helps explain why Trump has not been charged with violating federal law by instructing Cohen to pay Daniels in exchange for her silence.

The state charges that Bragg reportedly is contemplating are based on a New York law that makes it a misdemeanor to falsify business records, which Trump arguably did by identifying Cohen’s reimbursement as payment for legal services. Cohen was paid in installments, sometimes with Trump’s personal checks and sometimes with checks from his revocable trust account. The latter checks were signed by Trump Organization CFO Allen Weisselberg. According to the sentencing memorandum in Cohen’s case, Trump’s company “falsely accounted” for those payments by describing th