Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and current counsel at the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own.
Most lawyers aren’t willing to sacrifice themselves for their clients. That is, it seems, except in the case of Michael Cohen. Known to the world as “President Trump’s personal lawyer,” Cohen claims to have taken a $130,000 financial hit to protect his client from a scandal: allegations that Donald Trump had an affair with porn star Stephanie Clifford, aka “Stormy Daniels,” in 2006. On Tuesday, Cohen said in a statement that he used personal funds in 2016 to “facilitate a payment” to Clifford and that no one in the Trump Organization or campaign “reimbursed me for the payment, either directly or indirectly.”
Lawyers often pay a form of “hush money” customarily referred to as “settlement proceeds” to resolve legal disputes. The “hush” part of the transaction is assured by confidentiality and nondisclosure agreements, sealing the lips of all parties to the transaction. Such agreements are particularly popular when high-profile corporate executives and politicians are accused of sexual harassment, sexual abuse or other kinds of embarrassing conduct (like adultery with a porn star, for instance).
What’s unusual here is that the beneficiary of Stormy Daniels’ $130,000 confidentiality agreement is not Mr. Cohen, the man footing the bill, but Donald Trump. Since assuming the role of “personal counsel,” Cohen has been described as one of Trump’s “pit bulls” – the result of his tendency to threaten and file lawsuits whenever he, the Trump Organization or Mr. Trump himself are seriously attacked or maligned.
But why would Cohen use his own personal funds to make such an enormous payment? Is this a quest to become a form of political sugar daddy to Trump, a relationship akin to Bebe Rebozo’s with Richard Nixon?
Given the fact that the tabloid press had been buzzing with rumors that Melania Trump had imposed what Bruce Springsteen might refer to as a “Tenth Avenue Freezeout” on the President, Mr. Cohen’s Valentine’s Day timing in disclosing his role here was impeccable. With his customary bravado, he continued: “The payment to Ms. Clifford was lawful, and was not a campaign contribution or a campaign expenditure by anyone.”
Further characterizing his $130,000 payment, first reported by the New York Times, as a “private matter,” Mr. Cohen notes in the interview that he has also provided this information to the Federal Election Commission – which is investigating a complaint filed by Common Cause, alleging that the payment of hush money to Ms. Clifford was really an illegal and unreported campaign contribution.
The wording of the implausible story Cohen offered in his statement leaves him a couple of escape hatches from the sticky situation of being the uncompensated money man. Denying reimbursement from the “Trump Organization” or the “Trump campaign” still leaves open the possibility of reimbursement, now or in the future, from President Trump personally or from Trump’s family, friends or supporters.
Should those other forms of reimbursement occur, this could create a legal problem for Cohen – if he told federal investigators that no such promise of recompense had been made. Assuming, for the time being, that the Cohen payment to Ms. Clifford was entirely personal, made gratuitously in honor of his idol Mr. Trump, then the payment is probably perfectly legal.
Lying to federal investigators, however, could lead to serious criminal charges under federal law, such as making false statements or even perjury. On the other hand, lying to the press is not only perfectly legal, but lately has risen to an art form in American presidential politics. The John Edwards case established the precedent that personal gifts and payments motivated by friendship rather than an attempt to assure a candidate’s election need not be reported.
Edwards, while a presidential candidate with a pregnant mistress, was given money by “friends” to secretly support and house her. Edwards was indicted for failing to report election contributions and on other related charges, but acquitted at trial. He used the “friends” rather than political supporters defense. Senator Robert Menendez of New Jersey more recently got a hung jury and eventually a dismissal of the criminal charges against him using a similar defense in a bribery case. If confronted with legal action, it’s quite plausible that Cohen will claim his contribution to the Stormy Daniels “silence is golden” fund was motivated by friendship rather than politics.
If Cohen wishes to transform himself from pit bull to sugar daddy, the law will permit it, technically speaking. He should remember, though, that even the generosity of Bebe Rebozo never saved Richard Nixon from resignation and disgrace. And John Edwards’ presidential campaign crashed and burned. Cohen’s purchase of Stormy Daniels’ silence will not erase the public’s already ingrained perception of the President’s alleged liaison with her. Hush money can purchase silence but, regardless of who pays it, it does not erase anyone’s memory.
An earlier version of this article incorrectly stated that Melania Trump was pregnant at the time of her husband’s alleged encounter with Stormy Daniels. She had given birth a few months earlier.