Congress To Investigate Payoffs To Karen McDougal and Stormy Daniels

House Democrats are set to investigate the payoffs made to Karen McDougal and Stormy Daniels in advance of the 2016 election.

With Congress set to reconvene next week, House Democrats are announcing plans to investigate the President’s involvement in the efforts to purchase the silence of Stormy Daniels and Karen McDougal in advance of the 2016 election, an action which potentially violates several provisions of campaign finance law:

House Democrats plan to make President Trump’s alleged involvement in a 2016 scheme to silence two women who claimed they hadaffairs with him a major investigative focus this fall, picking up where federal prosecutors left off in a case legal experts say could have led to additional indictments.

The House Judiciary Committee is preparing to hold hearings and call witnesses involved in hush-money payments to ex-Playboy model Karen McDougal and adult-film star Stormy Daniels as soon as October, according to people familiar with the plans who spoke on the condition of anonymity to describe internal discussions. 

Democrats say they believe there is already enough evidence to name Trump as a co-conspirator in the episode that resulted in his former attorney, Michael Cohen, pleading guilty to two campaign finance charges. 

Cohen, who is serving a three-year prison sentence for those counts and other crimes, testified under oath that Trump directed the payments that helped land him behind bars. Federal prosecutors in Manhattan also described Trump’s alleged role in the scheme, referring to him in court papers as “Individual-1.” But they concluded their investigation this summer without bringing any additional charges.

The hush-money inquiry will open a new chapter in the House’s months-long consideration of whether to draft articles of impeachment against the president.

More than 130 House Democrats have called for an official impeachment inquiry to begin, although House Speaker Nancy Pelosi (D-Calif.) has cautioned that trying to remove Trump would be divisive and politically risky without public support.

The new congressional inquiry will reopen questions about the extent of Trump’s involvement in the episode — and whether he would have been charged if not for Justice Department opinions that a sitting president cannot be indicted.

“The fingerprints are all over this one — it’s not like a big mystery,” said Rep. Jamie B. Raskin (D-Md.), a member of the Judiciary panel. “As with the evidence of presidential obstruction of justice, the conclusion seems inescapable: that [Trump] would have been tried had he been anybody else. And now it’s left to Congress again to figure out what to do with the lawbreaking and apparent impunity of the president.”

Trump, his aides and attorneys have made contradictory statements about the president’s knowledge of the payments. But his lawyers have repeatedly denied that Trump committed wrongdoing.

“No campaign violations were engaged in by the president,” said Jay Sekulow, Trump’s personal attorney.

As part of the probe, Democrats plan to explore whether the investigation was stymied or obstructed. The Judiciary Committee is also considering as a potential witness David Pecker, the chairman and CEO of American Media Inc., the parent company of the National Enquirer, which admitted making the payment to McDougal. 

AMI complied with a document request Democrats made earlier this year, giving the committee all communications it previously turned over to law enforcement, according to the people familiar with the inquiry.

The story behind these payoffs is fairly well-known at this point. Back in the mid-2000s when Trump’s wife Melania was pregnant with their son, Trump apparently had multiple affairs and sexual dalliances. Most notably, these included Stephanie Clifford, a pornographic film actress who goes by the name Stormy Daniels, and Karen McDougal, a former Playboy model who Trump. The Daniels affair was apparently a short-lived one that lasted no longer than one or two encounters, while the affair with McDougal apparently lasted for several months at least. Rumors about these relationships, which were not dissimilar from those that Trump had while married to his first and second wives, apparently floated around Hollywood and New York for several years although they never became well-known to the public.

Fast forward to the fall of 2016, when Donald Trump was running for President. At that point, there was some concern that these twin stories would come out in advance of the election and damage the President’s campaign. This fear apparently became stronger after the release of the Access Hollywood tape, which was quickly followed up by allegations from more than a dozen women of sexually inappropriate behavior by Trump over the years. It was roughly around this time that negotiations began on two fronts.

First, representatives for Stormy Daniels were approached regarding an agreement between her and Trump that would involve being paid a certain amount of money in exchange for her silence regarding her affair with Trump. The agreement was negotiated between an attorney representing Trump and Michael Cohen, who was, of course, Trump’s personal lawyer at the time.

The original claim from the White House was that the President had no idea what was going on with regard to these payments, and the President himself restated this position several times when asked about it by reporters. In addition to the fact that these claims of ignorance did not pass the test of credulity, generally speaking, these claims quickly began to fall apart in the spring of this year. In May, for example, Rudy Giuliani, who had at that point only recently joined the President’s legal team, appeared on Fox News Channel and revealed, to the surprise of many, that not only did the President know about the payoff to Daniels but that he had reimbursed Cohen for the $130,000 that was paid to Daniels. A week later, the President released an updated financial disclosure in which he acknowledged having reimbursed Cohen beginning late in 2016 and continuing into the beginning months of his time as President. 

At roughly the same time that the payment was being negotiated with Daniels, separate negotiations were taking place between McDougal and American Media, Inc, the parent company of the National Enquirer and a number of other publications. The CEO of AMI happens to be David Pecker, a long-time friend of Trump’s. AMI and McDougal ultimately reached an agreement that effectively silenced her in advance of that election. Under that agreement, McDougal was paid $150,000 for the rights to her story regarding the affair and apparently promised column space in AMI publications which she has alleged she was never actually given. McDougal has also said that her attorney at the time was also in communication with Michael Cohen regarding such an agreement, although she was not aware of those conservations at the time and the contents of those communications were never revealed to her. In March of last year, McDougal filed suit against AMI alleging that it had not complied with its obligations under the agreement and that the entire purpose for entering into the agreement was to obtain the rights to the story of McDougal’s affair with Trump and then never publish it, a practice known as “catch and kill” that AMI has been known to use in the past when it came to stories about people with whom Pecker has a close relationship, such as President Trump. That lawsuit was settled in April, with the result being that McDougal was allowed to keep the payment and retained the rights to tell her story. As with the payment to Stormy Daniels, Michael Cohen has stated that Trump was fully aware of the payment to McDouglas.

As election law expert Rick Hasen noted more than a year ago, all of this is very significant legally:

Cohen’s payment to Daniels, if motivated to help the campaign, would be a likely campaign finance violation. Depending on his motive, either Cohen made an excessive and unreported “in kind” contribution to the campaign—by funding a payment in excess of the $2,700—or Cohen made an unreported loan to the campaign which the Trump campaign should have reported. If Trump knew about it at the time, Trump could be implicated in a conspiracy with Cohen.

The problem with this case, as in the 2012 case against John Edwards for payments by supporters to his mistress, is the question of whether the funds were campaign-related. Edwards’ defense was that his payments were personal to help his relationship with his wife—not campaign related—an argument that led to Edwards being acquitted on one charge and the jury deadlocked on the others.

So too it could be with the Cohen-Daniels payment. If Cohen intended the payment to preserve Trump’s relationship with his wife Melania, for example, rather than to bolster the campaign, then there would be no campaign finance violation. As I have been saying for a while, the case could turn on whether there is documentary evidence indicating an intent one way or the other.

(…)

The Journal reports federal prosecutors view the release of the “Access Hollywood” tape as the “trigger” for Cohen’s payments to Daniels.

That’s a big deal. Two important Republican election lawyers have attempted to set a high bar for how to tell when a payment in this context might be campaign-related rather than personal. Charlie Spies told the Journal in February that the payment to Daniels was “an expense that would exist irrespective of whether Mr. Trump was a candidate and therefore should not be treated as a campaign contribution.” And former Federal Election Commission chair Brad Smith wrote in an April op-ed in the Journal that “FEC regulations explain that the campaign cannot pay expenses that would exist ‘irrespective’ of the campaign, even if it might help win election. At the same time, obligations that would not exist ‘but for’ the campaign must be paid from campaign funds.”

Even under these tough standards for what counts as campaign-related, the proof of the timing would be damning for Cohen. Why should Cohen not care a whit about protecting Trump’s reputation in his wife’s eyes in September 2016, but be anxious to close the deal—and shut Daniels up—right as the campaign faced a crisis involving allegations of Trump’s treatment of women? The Daniels payment was not an expense that existed until the campaign needed it. But for the campaign, it seems that Cohen would not have paid.

The most paramount legal implication comes from the potential violation of campaign finance laws. If it can be established that the payment to Daniels was made primarily out of the fear that her allegations could become public immediately prior to the 2016 election then that payment could be interpreted as being an illegal in-kind campaign contribution. In that respect, these revelations are potentially quite significant if they turn out to be accurate. From the report, it seems as though Cohen (and by extension Trump) rejected the idea of making any kind of payment when initially approached by the lawyer that was representing Daniels in September 2016 but that they significantly changed their tune after the release of the Access Hollywood tape, which was quickly followed by a group of women that ended up numbering nearly two dozen who accused then-candidate Trump of having sexually harassed them in the past. The immediate impact of those revelations, of course, was exceedingly negative for Trump’s campaign. Not only did it lead many Republicans to openly attack their party’s nominee less than a month before Election Day but it also had a measurable impact on the polling that was only reversed by the release of the letter regarding reopening the Clinton email investigation that James Comey sent to Congress about two weeks later. As Hasen notes, this makes it highly probable that the payment to Daniels was meant to protect Trump the candidate and the Trump campaign, not to protect Trump the person or the Trump marriage. If that’s the case, then the payment would seem to clearly fall within the kind of illegal in-kind campaign contribution that the election laws contemplate.

Where this all leads is unclear, but it does seem to reinforce the reasons why, as was reported repeatedly throughout the summer, Trump has as much to worry about from a legal perspective from what Michael Cohen might tell prosecutors than he did from the Russia investigation. Now that Democrats will have control of the House and its investigatory powers starting in January, it seems inevitable that we’ll be learning more about all of this, and more, as time goes on.

FILED UNDER: Campaign 2016, Donald Trump, Impeachment, Law and the Courts, Politicians, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    At this point I just look forward to the acrobatic display evangelical Christians will stage, pastors and elders and church ladies all somersaulting through the air as they wave off multiple adulteries. Adultery? Is that even wrong? What commandment, you say? Yeah, well, what about the commandment that all white people should own guns, and the one where rape victims must bear the rapist’s child? How about Jesus saying, “Make the little brown children suffer before they come unto me.” Huh? Those are the important ones. I know ’cause God told Pastor Jimmy Bouffant in a revelation!

    Praise Trump! I mean, um, the name escapes me. . . started with a ‘J’ I think.

    The one true upside of Trump has been the self-immolation of white evangelicals. I wish them well in their work of self-destruction.

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  2. CSK says:

    Slight but important correction: The affairs with Daniels and McDougal took place months after Melania gave birth to Barron.

  3. CSK says:

    @michael reynolds: Judging from what I’ve read, the cult has already dismissed Daniels and McDougal as liars. Trump is divinely happy with Melania and utterly faithful to her.

  4. Neil Hudelson says:

    There are considerably higher odds today than yesterday that the phrase “toadstool-like penis” enters the Congressional Record.

  5. Fortunato says:

    I think this is a mistake.
    This has already been investigated by Congress. As with every other Trump crime and GOP cover-up, the Dems were incapable of landing any real blows on Donny Two Scoops, let along making a case for punitive action.

    Is it possible Democrats are excited about our line up of star witnesses –
    a porn star, a vacuous Playboy model, Crooked Lawyer#1 Michael ‘The Fixer’ Cohen (disbarred – in jail) and Crooked Lawyer#2 Michael Avenatti (soon to be disbarred – in jail)?
    Oh yes, and David Pecker, Trump Whisperer and former CEO of the National Inquirer (then there’s the goon in the grocery store parking lot).

    I have to believe the overwhelming majority of Democrats don’t want to wallow in this Trump Trough for a few months over the holidays. Valid or not, the whole thing reeks of a political ploy.

    I also have to believe every time the names Stormy Daniels and Karen McDougal are brought up, the deplorables (including the eeevangelicals) snicker to themselves then do a little fist bump in honor of Dashing Donny’s conquests.

    How about Democrats choose instead to hammer home the DOZENS of truly laudable bills they’ve passed in the House and are lying dormant, awaiting Senate action?
    Bills that will directly benefit the working poor, the middle class, the under-insured, equal pay, cleaner environment, safer water, veterans, the disabled, violence against women, gun regulation, White Supremacist regulation, election security, campaign finance reform etc..

    I’m guessing that’s a message Mom & Pop Lunchpail would heartily embrace.
    We’re truly lost if we think the ensemble cast of Stormy Daniels, Michael Cohen and David Pecker would aid in our quest to take back the White House.

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  6. Jen says:

    Question–if this does indeed end up being a campaign finance violation, with the FEC now unable to meet quorum, does anything happen? Meaning, who is the enforcement authority?

  7. Scott F. says:

    @Fortunato:
    That no man is above the law is a critically important premise in a democracy and absolutely worth defending as a matter of principle.

    But this legal premise is hand-waved away and the principled defense dismissed as purely political and it’s just another day in The Era of Trump.

    Fortunato, I believe you are likely correct that this will prove to be a mistake. God, how I wish you were wrong.

  8. michael reynolds says:

    @Fortunato:
    Any political move has to be looked at in terms of target and likely consequences. The target is not the members of #Cult45. They are lost, probably permanently. The target is educated suburban white women who voted GOP out of habit in 2016 and might do so again. The main effect will likely be to move a point or two of that electorate. And the fun side-effect will be to drive Trump even crazier than usual.

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  9. SenyorDave says:

    I’m not sure it is possible to ever remind people enough the POTUS is morally bankrupt. Since this stuff will not come up in debates get it out there in another fashion, and connect it to other wrongdoing. Is he going to be impeached over this< Obviously not. But it sure as hell is not going to help Trump, and as Michael says, it may hurt him marginally with independents. I don't buy into independents getting annoyed with Democrats for endlessly investigating Trump. People who think that way were never going to vote for a Democrat.
    Congress has oversight, they should use it . Besides, you never know what might turn up, Whitewater yielded Monica Lewinsky.

  10. dennis says:

    @michael reynolds:

    LOL! Savage, Michael! Savage!

  11. dennis says:

    @Scott F.:

    That no man is above the law is a critically important premise in a democracy and absolutely worth defending as a matter of principle.

    But Scott, ours is not a democracy; it’s a Republic. (Cue S. Taylor swooping in with a flaming sword…)
    I’m just pulling your chain, Prof. Taylor!

  12. An Interested Party says:

    I look forward to Republicans complaining that the Democrats in the House are doing nothing more than looking into meaningless, prurient matters that are none of their business…they then can be reminded about a certain blue dress and all of the GOP interest in that…

  13. rachel says:

    Now that Democrats will have control of the House and its investigatory powers starting in January, it seems inevitable that we’ll be learning more about all of this, and more, as time goes on.

    I thought the Democrats has those powers from last January.

  14. MarkedMan says:

    I agree with Fortunato. The fact that Trump screws porn stars is baked in. No one is going to be influenced by this investigation. The Dems would be much better off investigating Trumps real estate scams or Trump University.

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  15. Jax says:

    @MarkedMan: I don’t think it’s gonna matter what the Dems investigate, unless they’re willing to go full Internet Research Agency and blanket social media with ads and videos of ALLLLL of the hearings. Even then, the right wing bubble might ratchet it up a notch and drown them out.

  16. Jax says:

    It isn’t the Nixon times anymore. Nobody gets their news from “the tv”. There is really no way to make people pay attention, everybody who pays attention to politics is already dialed in. Everybody else does not give a rat’s ass, they have their “check in” news sources, and that’s it. Their “demographic and location” decides their news sources, unless they are really willing to search outside the box. Most of them aren’t. They take what’s fed to them.

  17. Gustopher says:

    @Fortunato:

    How about Democrats choose instead to hammer home the DOZENS of truly laudable bills they’ve passed in the House and are lying dormant, awaiting Senate action?

    I don’t see adding another two dozen bills is a worthwhile endeavor. If there’s something topical, sure, but half the time they can point to what they already passed — the most recent Texas mass shooter was denied guns because of the federal background check, and then exploited the private sale loophole, for instance.

    I think the porn stars and campaign finance violations are weak tea, but it’s where they can make the most progress quickly, without the need to battle Trump for documents.

    In late 2020, they should be harping on both, focus grouping and seeing what shit sticks.

    But, given a choice between passing bills that won’t get taken up in the senate, pursuing an impeachment doomed to die in the senate, investigations that will be completely stonewalled, and weak tea investigations… at least put some effort behind the weak tea.

    (I do wish that the House did not enter into a big budget deal with the administration. I would rather have crisis after crisis with threats to shut down the government if Trump moves money from supporting military families to his stupid wall…)

  18. Jax says:
  19. Teve says:

    @Jax: oh my god I busted out laughing. Everybody should read that.

    GOP Senators Who Backed Trump’s Emergency Declaration Lose Military Funding

    Republicans who supported an emergency declaration on the U.S.-Mexico border are discovering the cost of standing with President Donald Trump: millions of dollars in federal funds diverted away from planned military construction projects in their states.

    And there’s another paragraph further down that’s even funnier. 😀 🙂

  20. Jax says:

    @Teve: Poor Mittens and Mikey. If we only had a Congress that could “do something” about this. 😉

    https://www.ksl.com/article/46632361/sens-mitt-romney-mike-lee-decry-diverting-hill-air-force-base-funds-for-border-wall

  21. Teve says:

    @Jax: everybody who supports Trump gets pantsed in the end. 😀 😛 😀

  22. Daryl and his brother Darryl says:

    @Neil Hudelson:

    There are considerably higher odds today than yesterday that the phrase “toadstool-like penis” enters the Congressional Record.

    …and a Presidential dick pic.
    Insert puking emoji, here.

  23. Just nutha ignint cracker says:

    @Teve: Hey, the money has to come from someplace. It’s not like the DoD can simply pull 3 billion out of thin air. And what better opportunity will these Senators have to show how important the wall is? Haven’t they been saying that this is a national security issue of equal importance to military readiness? People have been saying that, you know. Not me, but I’ve heard that a lot of people are.

  24. Liberal Capitalist says:

    @Fortunato:

    I think this is a mistake.
    This has already been investigated by Congress.

    Tell me again…
    How many times was Benghazi investigated? (Hint: it’s 33)
    How about Solyndra?
    Political Bias at the IRS?

    Did Republicans say: “Gee… once is enough! And since nothing was found, let’s get back to working for the benefit of all Americans” ?

    No, of course not… but Republicans, trolling for info and positive press before their constituents, tying up people and time in multiple repetitive investigations doesn’t mean that Democrats should follow suit.

    However…

    If you have a candidate, with a history of infidelity, caught red-handed lying to the American Public, paying off women for their silence, before an election… Maybe, just maybe, there is something there. And that something would be clearly illegal.

    Unless, of course, you just want Congress to open another investigation into “her emails” so Trumps rabid 28% can “lock her up!”

  25. Teve says:

    @Liberal Capitalist: Have the Trump Chumps figured out that if Hillary hasn’t been Lock Her Upped by now, it’s never going to happen?

  26. Fortunato says:

    @Liberal Capitalist:

    Oh, I’m certain there is indeed ‘something there’.
    It seems patently obvious Trump has committed campaign finance violations.
    But you can rest assured the Republican base doesn’t give two sh&^s.
    And you can be equally certain Nadler won’t succeed in prosecuting the case.
    Hell – as Jen pointed out previously, we don’t even have a functioning Federal Elections Commission (no doubt by design). It is the FEC who has jurisdiction over all such cases.

    Let Trump and his whole mafioso family spend the rest of their days (post 2020) in a courtroom in the SDNY. They can prosecute all of them ’til the cows come home.
    For now, let’s do everything we can to increase our chances of retaking the WH.
    It is my humble opinion that a repeat investigation into the mire that is Stormy Daniels et al, only serves to hurt our cause.
    If a sufficient number of Americans were willing to give Trump a pass for openly boasting about his unimaginably offense practice of grabbing women by the pu##y (!!), they’re certain to excuse him for paying off a porn star.
    (and again, for the Trump voting base, his dalliance with a porn star and Playboy model is a feature, not a bug)

  27. Gustopher says:

    @Jax: If we were operating on a series of two week continuing resolutions, the Democrats could actually use the power of the purse to shut down the government if money is being shuffled around.

    Trump’s use of emergency declarations shows he cannot be trusted to act in good faith, and that he needs to be held on a very short leash.

    (Also, Senate calendar time is at a premium, and this would make it harder to appoint justices)

  28. Gustopher says:

    @Fortunato:

    If a sufficient number of Americans were willing to give Trump a pass for openly boasting about his unimaginably offense practice of grabbing women by the pu##y (!!)

    I’m pretty sure most Americans don’t believe that Trump actually walks around grabbing women by the housecat, and that this is just (incredibly juvenile) boasting with no basis in fact.

    And by most Americans, I mean all Trump supporters and a chunk of his opponents.

    I’m not saying he doesn’t do this, and there are certainly enough accusations of sexual assault that it’s plausible, but in any other context you would think it was just a grossly immature person trying to impress others with how badass he is.

    If Biden gets the nomination, women across America will get to decide where they would rather be touched uninvited.

    Biden 2020: He’ll just sniff your hair or hug you.

  29. mike shupp says:

    @michael reynolds:

    Donald Trump is the leader of this Christian nation and always ought to be treated with appropriate solemnity, In particular, we should address him and refer to his with a title commensurate with his leadership of the Christian community, in a manner that all will understand.

    I suggest — I humbly beg — I pray that henceforth you and other exemplars of manners and correct speech refer to him as “Pastor Trump.”

  30. mike shupp says:

    @michael reynolds:

    Donald Trump is the leader of this Christian nation and always ought to be treated with appropriate solemnity, In particular, we should address him and refer to his with a title commensurate with his leadership of the Christian community, in a manner that all will understand.

    I suggest — I humbly beg — I pray that henceforth you and other exemplars of manners and correct speech refer to him as “Pastor Trump.”

  31. Matt says:

    @Gustopher:

    then exploited the private sale loophole, for instance.

    Oh for god’s sake private sales are not an exploit or a loophole. We can’t stop the private sales of drugs with a pile of laws but maybe if we pile more laws on it might work this time? That’s your argument distilled…