MEMO: The Stormy Daniels Lawsuit and Its Legal Implications for President Trump – What You Need To Know
- david vance, jay riestenberg
Last night, NBC News reported that adult film actress Stephanie Clifford, aka “Stormy Daniels,” is suing President Trump for violating their nondisclosure agreement created shortly before the 2016 election. The lawsuit filed by Clifford adds new information that underscores arguments Common Cause made in its January 2018 complaints to the Federal Election Commission (FEC) and Department of Justice (DOJ) alleging the hush money payment was a violation of federal campaign finance law.
Stormy Daniels details purpose of hush money payment
Federal campaign finance law defines “expenditures” as any funds spent “for the purpose of influencing” federal elections.
In paragraph 16 of the complaint, Clifford alleges that the purpose of Mr. Trump’s hush money payment was “to avoid her telling the truth, thus helping to ensure that he won the Presidential Election.”
Stormy Daniels claims Trump was directly involved
Under federal campaign finance law, any “expenditures” by a candidate or agent of a candidate or in coordination with a candidate must be reported by the candidate’s committee to the FEC.
In the lawsuit, Clifford reveals Donald Trump’s direct involvement in hush money negotiations. In paragraph 16 of the complaint, Clifford claims “Mr. Trump, with assistance of his attorney Mr. Cohen, aggressively sought to silence Ms. Clifford” and that Mr. Cohen then “prepared a draft non-disclosure agreement and presented it to Ms. Clifford and her attorney.”
Failure to disclose “expenditure” is illegal
Allegations in Clifford’s complaint, if true, mean that President Trump and the Trump campaign made a campaign expenditure in the form of a hush money payment to Clifford. The Trump campaign committee failed to report this expenditure to the FEC.
As Common Cause alleged in its January complaints filed with the FEC and DOJ, the Trump campaign’s failure to report this expenditure to the FEC would not only violate the campaign finance law disclosure requirements, 52 U.S.C. 30104, but would also violate the federal law prohibiting false statements of material fact to the federal government, 18 U.S.C. 1001.
Why didn’t Trump sign the agreement?
In paragraph 22 of the complain, Clifford alleges Trump’s motive for not signing agreement was to preserve ability to later deny it. This could also be an effort by Trump and Cohen to avoid prosecution for knowing and willful violation of federal campaign finance law.
Cohen had a legal responsibility to communicate with Trump on this matter
The complaint points out in paragraph 31 that Cohen had a legal responsibility under New York Rules of Professional Conduct for attorneys to communicate to Donald Trump all material information regarding the Stormy hush money agreement. Therefore, Trump was likely involved and had knowledge of this matter.
What does this all mean legally?
Americans have a right to know who is spending money to influence their votes on Election Day. This right has been reaffirmed for decades by the U.S. Supreme Court, including recently by the conservative-majority Court. As Common Cause alleged in its January complaints filed with the DOJ and FEC, there is strong–and growing–reason to believe that Mr. Trump and his campaign violated federal campaign finance disclosure laws by hiding this election-influencing hush money payment. Further, depending on the source of the $130,000 paid to Clifford, Mr. Trump and his campaign may have received an illegal campaign contribution.
What happens next with the FEC and DOJ complaints?
Career attorneys in the FEC’s nonpartisan Office of General Counsel will review the complaint and responses filed by the respondents (the Trump Organization, the Trump Campaign, and “John Doe”). The attorneys will then submit a report to the Commissioners recommending whether the Commission should find reason to believe that a violation may have occurred and whether to investigate. Although the FEC normally has six commissioners, it currently has only four (two Republicans; an Independent; a Democrat and two vacancies). It will take four affirmative votes to take action on whatever the Office of General Counsel recommends.
The Department of Justice complaint is likely to be evaluated by the Criminal Division’s Public Integrity Section for further action.
The FEC and DOJ must investigate these apparent violations of federal law and hold violators accountable. No one is above the law, not even the President.