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Why Cohen’s hush money places the president at legal risk

Last week’s court filings by federal prosecutors and the special counsel have shifted attention to the hush money payments made on President Trump's behalf during his 2016 presidential campaign to two women with whom he had allegedly had affairs. William Brangham speaks with Rick Hasen, an election and campaign finance law scholar about the president's apparent proximity to a felony.

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  • Judy Woodruff:

    But first: The legal jeopardy for President Trump deepened last week with the many filings from federal prosecutors and from special counsel Robert Mueller's office.

    Of particular concern are the payments made to two women during the 2016 campaign to stop them from coming forward with allegations that they had sexual relations with Mr. Trump.

    William Brangham explains how prosecutors have now implicated the president in a possible felony crime.

  • William Brangham:

    That's right, Judy.

    On Friday, prosecutors added more detail to their case against Michael Cohen, who, as you know, was President Trump's longtime lawyer and fixer.

    They detailed what they say was Cohen's violation of federal election law. Prosecutors accused Cohen of intentionally trying to subvert the 2016 presidential election, writing — quote — "Cohen sought to influence the election from the shadows. He did so by orchestrating secret and illegal payments to silence two women who otherwise would have made public their alleged extramarital affairs with Individual 1."

    Individual 1, of course, is President Trump, who prosecutors allege directed Cohen and knew all about these payments.

    Joining me now is Rick Hasen. He teaches at U.C. Irvine Law School. He's a scholar of election law and campaign finance, and he writes the Election Law Blog.

    Rick, thanks for being here again on the "NewsHour."

    Could you just start off by helping us understand, what is the crime that is being alleged here? How do two possible hush money payments constitute a possible campaign law violation?

  • Rick Hasen:

    Sure.

    So an individual is allowed to give up to $2,700 to a candidate running for federal office, like president. And you can either give that money by writing a check to the campaign, or you might do it by giving something, goods or services, that are worth that much.

    And you can't give more than that. And if you are a corporation, you can't give anything directly to a campaign. And so the allegations here are that Cohen took out a loan against his House for over $130,000, used that to fund one payment, got The National Enquirer, which is a corporation, to fund the other payment, with a promise of repayment.

    And so you have both an individual making an excessive in-kind contribution to the president, a corporation making an illegal contribution, a personal loan that is not reported, and contributions and expenditures that are not reported.

    So all of these can potentially be criminal campaign finance violations if they are done willfully by the people who are involved.

  • William Brangham:

    Now, the president has had multiple different defenses for this. Originally, months ago, he said he didn't know about the payments, he didn't know why Michael Cohen had made them, he didn't know where the money has come from. He has since changed that story somewhat.

    Today, he reiterated a defense he has made many times, which, this was a simple personal transaction, is how he put it.

    What is he defending there? What do you make of the argument that he is putting forward?

  • Rick Hasen:

    Well, he made two arguments today. That was one of them.

    So, one argument is, this was personal, it wasn't campaign-related.

    And, really, the test is, is this a payment that would have been made irrespective of the campaign? Would he have been paying off these women anyway? And there is good circumstantial evidence that he wouldn't have been.

    And so one thing we know, with the Stormy Daniels payment is that Stormy Daniels' lawyer was looking for payment for a long time, and that payment didn't come until October 25, 2016 just before the election, when the lawyer says that Daniels was about to go to a media outlet and tell her story.

    So it doesn't look like it's really personal. It looks like it's campaign-related.

    And then the other argument was about, this is no different than what President Obama has done. And, there, he was comparing kind of technical minor errors in paperwork that are quickly corrected with what looks like a scheme of over a year of trying to cover up and hide and structure payments to avoid disclosing that these payments were made in connection to the campaign.

  • William Brangham:

    Just touching on the prior point that you made, if the president had made then — if then candidate Trump had made these payments in order to shield, as some have argued, his wife from these embarrassing revelations, that would be considered legal, correct?

    Or is that only if they are there to shield voters from hearing about these allegations, that is when it becomes illegal?

  • Rick Hasen:

    Well, I think, if it is wholly personal, it's an easy case to say it is not campaign-related. If it is completely campaign-related, then, of course, it has to be filed.

    This might be one of these mixed-motive cases. And so there are different tests out there to figure it out. We saw this with the John Edwards case, you may remember, a senator running for president having his mistress getting paid by donors. And, there, they couldn't prove that it was — the intent was campaign-related.

    But here there might be documentary evidence. You certainly have the potential testimony of Cohen that could prove that this was, in fact, intended to help the campaign, rather than just to help Trump personally.

  • William Brangham:

    In their filing on Friday, prosecutors seemed to acknowledge this point.

    I would like to read you something from the filing. They described how Cohen worked with Trump campaign officials, saying: "With respect to both payments, Cohen acted with the intent to influence the 2016 presidential election. 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 those payments."

    Doesn't that, it seems to me, build the case that this was campaign- and election-related?

  • Rick Hasen:

    It absolutely does.

    The thing is, though, that in order to prove a criminal violation, you have to prove that each person involved in a conspiracy willfully violated the law. So that goes very much to Trump's state of mind. So if we ever got to a point where there would be a trial or some kind of investigation into this, the question would be, what do we know about what President Trump was thinking?

    We have a pretty good idea of what Michael Cohen was thinking. It is pretty good circumstantial evidence of what Trump was thinking. But just the fact that Cohen has agreed to plead guilty to this alone doesn't prove that Trump is necessarily guilty of this crime.

  • William Brangham:

    You wrote in a column today in "Slate" that if the president were just an ordinary citizen, he would be in a lot more trouble than he is because he sits in the Oval Office. Why is that?

  • Rick Hasen:

    Well, you know, there are both legal and political issues here.

    One is, there is the question of whether a sitting president can be indicted. And I understand longstanding Department of Justice policy is that a sitting president cannot be indicted. So that raises a legal question of whether he could be indicted.

    And, politically, we know that it would be politically explosive to come after the president for committing a felony, whether it is campaign finance or something else. Similarly, it would be explosive for Democrats to raise the possibility of impeachment based on this.

    This would really be a ratcheting up of the political warfare that we have seen. And it is not clear that, even if there is a strong legal case, that there what be a strong enough political will, either in the Department of Justice, which is ultimately under the control of an attorney general who answers to the president, or to the Democrats in Congress, who might be worried about what the political ramifications would be going forward with an impeachment based on these kinds of charges.

  • William Brangham:

    All right, Rick Hasen, thank you so much for your time.

  • Rick Hasen:

    Thank you.

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