• Stormy Weather Ahead for Trump?

    December 12, 2020

    Posted in: Democracy

    Will Stormy Daniels get Trump in the end?
    Since the election sputtered to a conclusion President-elect Biden has signaled multiple times his taste for revenge is limited. His former prosecutor VP, while showing some blood lust during the primaries, has since been mostly silent on the matter. The majority of the crowd demanding Trump face some sort of punishment sits in the cheap seats of blue check Twitter and Morning Joe. While at first glance it seems like there are multiple roads leading to Trump’s prosecution, in fact under even light scrutiny things fall apart like tissue paper in the rain.
    What’s left to poke into is Stormy Daniels (her real name, Stephanie Clifford, is far less punable.) The story is a former porn star whose antics are all over the Internet (Oh, Google it yourself) has sex for money with a private businessman. She then takes more money to sign a nondisclosure agreement (NDA) to keep silent. Sensing an opportunity when the businessman later runs for president, she willfully violates the NDA to revive her career. Meanwhile, when faced with jail time for all sorts of dirty deeds, the businessman’s now disbarred lawyer, a felon himself, violates attorney-client privilege to claim on his word the NDA payoffs (inherently legal) were actually complex technical violations of campaign finance law. That’s the basic case someone would have to take to a New York state grand jury after January 20 to bring down Citizen Trump in the ultimate act of political revenge. Think that’ll work? Fuhgettaboutit!
    The problems begin with paying money as part of an NDA is not illegal; lawyers regularly obtain discreet resolutions of issues threatening the interests of their clients. Without admitting much of anything, money is paid from Party A to Party B in return for Party B dropping all future claims, agreeing to never mention something again, handing over documents or photos, whatever you’d like. It happens all the time, and in fact is the dirty little secret which keeps sexual harassment alive and well. Wealthy and important men paid women to remain silent under NDAs. It does not change the legality of all this even if the media calls those payments hush money or payoffs. In fact, even you can create a NDA right at home; here’s a downloadable fill-in-the-blanks version.
    Things only fall into a gray area if you can twist them into a violation of a campaign finance law. The idea is when Trump had his sexytime with Stormy he was just another philandering scumbag sleeping around on his wife. You want to take the ride, you gotta pay for the ticket. However, a few years later Trump became a philandering scumbag presidential candidate, and that money shifted, maybe, from a legal NDA payoff to something akin to a campaign contribution. The what in this case (money for silence) is clear. It is the why, intent, that matters most.
    The alleged illegality comes from the supposition by Michael Cohen that he can speak to Trump’s intent, that the NDA was not, say, to spare Trump’s marriage from new embarrassment, but “for the principal purpose of influencing an election” amid everyone already knowing Trump was a serial philanderer. If the whole, um, affair was primarily for the purpose of hiding Stormy from voters instead of hiding Stormy from his wife and kids, then the money was essentially a campaign contribution and whole new set of laws kick in.
    The problem is campaign finance laws require proof a person was willfully violating the law. Cohen’s testimony does not prove Trump knew the payments he was making were illegal. Prosecutors would have to prove that willingness by Trump alongside proving his principal goal was to influence the election. If this ever reaches court, Trump will simply deny that and no jury can say weighing one man’s word against another, especially these guys, eliminates all reasonable doubt. Felons testifying out of self interest make poor “honor” witnesses.
    There’s more. Prosecutors would have to connect Trump directly to the payment. The check for $35,000 from Trump to Cohen, which was supposedly part of $130k paid to Stormy Daniels Michael Cohen displayed at his 2019 Congressional hearing and ten others alleged to exist do not show what the payments were for. The checks do not have Stormy’s name on them. Cohen simply claimed they were part of his reimbursement for “illegal hush money I paid on his behalf.”
    They are receipts for a crime only because Cohen says they are. Under direct questioning, Cohen claimed there was no corroborating evidence. He said he sent invoices to Trump only for “legal retainer fees,” so don’t bother with the invoices as evidence because Cohen now says he lied on them claiming it was a retainer fee. The checks total over $400k, because supposedly Trump rolled Cohen’s fee and bonus into the amount, so we just have to take his word for it that some of that money was for Stormy. Cohen said some of the checks were signed by Don, Jr. and the Trump Organization’s CFO. That means the checks would be used to implicate personally a person who did not sign them. If this all sounds complicated, it’s because it is.
    After all that, for Stormy’s payoff to be illegal it will also be necessary to determine the money came from campaign funds. If it was Trump’s private money, even private money he donating to his own campaign, there is likely no case. Even if the money is shown to be campaign funds, illegality is based on the $2,700 donation limit imposed on the supposed “giver,” Michael Cohen in this case who has already been charged, a limit which does not apply to the candidate himself. The payment is also not a donation if it was made for an expense that would have been paid even if there were no campaign. Say like hiding an affair from your wife. And oh yeah, the NDA with Stormy will soon be outside the statute of limitations absent some very creative legal maneuvering which would itself be subject to extensive litigation.
    But the core problem with this case is absence any hereto unknown witnesses it requires a jury to believe the uncorroborated words of Michael Cohen, a disbarred, convicted felon violating attorney-client privilege to beg for a shorter sentence. Summing it up as dryly as only a lawyer can, a former longtime state prosecutor of white-collar and organized crime cases who later oversaw enforcement at New York’s Department of Taxation and Finance said “The burden of proof is substantial.” Trump at worst would be shown to be a conspirator to a contested interpretation of the Federal Election Campaign Act, a de minimis violation. The most likely result would be a fine for something like failure to properly report contributions to the Federal Election Commission.

    There is a second sexytime bedtime story which somehow is even less likely to matter.  Karen McDougal, a Playboy model, began an affair with Trump in 2006, claiming she was attracted to his “intelligence and charm. Such a polite man,” which says something about her credibility. As Trump’s candidacy gained momentum in 2016, McDougal accepted a $150k fee from David Pecker (you just can’t make this stuff up) a Trump friend and chairman of The National Enquirer, for the rights to her story. The Enquirer never ran the story, technically known as “an (sleazy) editorial decision” but something which the media redubbed as the made-up crime of “catch and kill.” The idea was the Enquirer bought the story, which was featured across all media, with the intent to hide it.

    Politicians are naughty boys, and have violated campaign finance laws before. For example, Barack Obama’s 2008 campaign was guilty of violations involving nearly $2 million, an amount that dwarfs the money in Stormy’s case. In that instance, Obama’s own Justice Department somehow decided not to prosecute and instead quietly disposed of the problem with a fine levied by the Federal Election Commission.

    People will also remember the 2012 failed prosecution of former Democratic vice-presidential nominee John Edwards on charges of campaign finance violations. Edwards was accused of illegally arranging for two wealthy supporters to pay $925,000 to keep his pregnant mistress out of public view during the campaign. Sound familiar?

    As with Russiagate, impeachment, Emoluments, and all the other serial sagas which were supposed to bring Trump down, the basket of sex crimes is much more hopeful smoke and media hyperbole than actual fire. The further back prosecutors reach into Trump’s life before he was president, and the more obscure parts of law they feature, the more they try to reshape civil offenses into major crimes, the more likely Trump will overcome their efforts by claiming political motivation. Dems won the presidency, and Trump will soon leave the White House. Looking for more vengeance past that seems a dry hole. Remember, you wrestle with pigs, you just end up dirty, and the pig usually likes it. Best advice is stay out of the pen.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

  • Recent Comments

    • John Poole said...

      1

      A warning to Democrats. If you’re hell bent on revenge better dig two graves. I was hoping that Trump if reelected would find a place for Stormy as a special envoy to strip clubs- I mean strip malls. Could Kamala Harris end up as Biden’s Spiro Agnew? She was given the VP position because of identity politics. It was a diversity thingee ploy which may have meant crossed fingers vetting.

      12/16/20 2:08 PM | Comment Link

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