Trump’s ‘Hush Money’ Payment
Trump’s
‘Hush Money’ Payment Isn’t Illegal In Itself—Here’s Why He’s Actually On Trial
By Alison Durkee, Forbes, April
12, 2024
Apr 12, 2024,10:26am
EDT
Topline
Former President Donald
Trump will go on trial next week for felony charges stemming from a $130,000 payment
made to adult film actress Stormy Daniels during his 2016 campaign—but while the
“hush money” payment
may be at the center of Trump’s alleged misdeeds, the act of paying Daniels to keep
quiet isn’t actually what’s under legal scrutiny.
Key Facts
Trump’s indictment
stems from the $130,000 payment, which Trump’s ex-attorney Michael Cohen made to
Daniels in October 2016 to cover up her allegations of having an affair with Trump
in 2006.
Trump then allegedly
reimbursed Cohen $420,000—consisting of the Daniels payment, a separate expense,
a $60,000 bonus and enough to cover taxes on the payment—which were made through
the Trump Organization, though many came out of Trump’s personal bank account, and
were allegedly falsely labeled as being for legal services through a retainer agreement.
The $130,000 Trump
and Cohen paid to silence Daniels is not actually illegal in itself: “Hush money”
agreements that both parties enter into consensually, in which one party pays money
to stop the other party from revealing information, are actually perfectly legal
in themselves, University of Pennsylvania law professor Tess Wilkinson-Ryan told Slate.
Hush money payments
can be illegal if they’re done to cover up a crime, or if it’s not a consensual
agreement, such as in the case of blackmail or bribery, Wilkinson-Ryan noted.
In Trump’s case, he’s
not being charged with making the payment itself or reimbursing it, but has only
been indicted on 34 counts of falsifying business records, based on the fact that
his reimbursement payments to Cohen were allegedly disguised as legal payments.
Even if hush money
isn't inherently illegal, some prosecutors have argued the way Daniels was paid—through
Cohen, right before the 2016 election—was a campaign finance crime: Cohen pleaded guilty to federal
campaign finance violations in 2018, after the Department of Justice alleged the
Daniels payment was effectively a donation to Trump's campaign that exceeded the
legal limit on political contributions.
Contra
The alleged crime
that Trump’s been charged with, falsification of business records, is typically
classified as a misdemeanor under New York law, but is elevated to a felony
when it’s done to facilitate another crime. That’s what prosecutors are alleging
here—all 34 counts against Trump are classified as felonies—with Manhattan District
Attorney Alvin Bragg arguing that the allegedly falsely labeled payments were done
to cover up other crimes, including Cohen’s campaign finance crimes and alleged
tax issues, as the payments to Cohen were falsely characterized as income rather
than repayments.
Chief Critic
Trump has pleaded
not guilty to the charges against him, decrying the case as a “witch hunt.” His
attorneys have argued in legal filings that Trump’s reimbursement checks to Cohen
were not unlawful, writing Trump “cannot
be said to have falsified business records of the Trump Organization by paying his
personal attorney using his personal bank accounts.”
What To Watch For
Trump’s criminal trial
is set to begin Monday with jury selection and run for approximately six weeks.
Each felony count that Trump’s been charged with is punishable by up to four years in prison and
a $5,000 fine, though
legal experts believe it’s unlikely
Trump would be sentenced to prison as a first-time offender.
Tangent
The payment to Daniels
isn’t the only “hush money” payment
that was made during Trump’s 2016 campaign, though it is the only one that’s directly
at issue in the criminal case. American Media (AMI), which publishes the National
Enquirer, also allegedly paid a doorman $30,000 to conceal a story about Trump having
a child out of wedlock, even after it was determined to be false, and paid model
Karen McDougal $150,000 to “catch and kill” her allegations of an affair with Trump.
AMI CEO David Pecker discussed the payments with Trump and Cohen, prosecutors allege,
and had a general agreement with them to hide negative stories during the campaign,
but Trump did not reimburse either of those payments. AMI was allegedly about to
transfer the rights to McDougal’s story to Cohen and have him reimburse the $150,000
payment, but ultimately didn’t at the last minute. McDougal and Pecker may testify
at Trump’s trial.
Key Background
Trump was indicted
in March 2023 for his role in the “hush money” scheme, following a yearslong investigation
by the Manhattan District Attorney’s office that first began in 2018. It has
since become one of four criminal cases the ex-president now faces—along with two
federal cases and another state case in Georgia—though it is the first of the cases
to go to trial, with no set trial dates yet in any of the other cases. Cohen was
sentenced to three years in prison for his role in the “hush money” plan and other
crimes, entering prison in May 2019 and ending his sentence slightly early in November
2021. Though previously known as Trump’s “fixer,” the ex-attorney has since turned
on the former president and is now considered one of his harshest critics.
Surprising Fact
Trump isn't the first
politician to face charges related to hush money over an alleged affair. Onetime
Democratic presidential candidate John Edwards was charged
with breaking campaign finance laws after the DOJ argued he conspired to have political
donors pay off a woman he had an affair with, in an effort to prevent a sex scandal
from hurting his campaign. In that case, as with Trump’s, the alleged crime wasn’t
the act of paying hush money itself, but instead was the way in which the money
was paid out. Edwards admitted to an extramarital affair but argued the payments
weren’t campaign contributions because they were meant to hide the affair from his
wife, not from voters. He avoided conviction after the jury hung on most counts.
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