Michael Cohen, personal lawyer to President Donald Trump, says that a month before the 2016 presidential election he paid $130,000 of his own money to porn star Stormy Daniels, who has in the past alleged she had a sexual encounter with Trump.
There is already a pending complaint filed before the Federal Election Commission (FEC) by the group Common Cause, alleging that a hush money payment to Daniels, whose real name is Stephanie Cliffords, by the Trump campaign would violate the Federal Election Campaign Act (FECA). Common Cause also forwarded a copy of its complaint to Deputy Attorney General Rod Rosenstein, and the DOJ's Criminal Division and Public Integrity Section, requesting a criminal investigation.
Both the FEC and the Justice Department have jurisdiction over certain campaign laws, but Justice can additionally prosecute campaign act violations involving false information provided to the FEC. This includes a now-familiar charge known as "Section 1001," or making a materially false statement to the federal government.
The FEC and the Justice Department can impose fines of up to double the amount paid ($260,000). The Justice Department also can criminally prosecute such crimes, which are punishable by up to five years in prison.
Trump has denied that any encounter with Daniels took place.
Any hush money paid to Daniels might have violated FECA reporting requirements, no matter the source.
Federal campaign finance law defines an "expenditure" as any payment for the purpose of influencing a federal election. Similarly, a "contribution" is a gift, deposit or anything of value given by any person for the purpose of influencing an election. It was originally reported that the Daniels payment was made through a limited liability corporation (LLC) set up in Delaware by Cohen, but the source of the funds was unclear. Now Cohen says it was out of his own pocket.
It matters who the payment came from when considering other FECA violations.
If Trump had paid Daniels directly, then it would likely be only a reporting violation, for the campaign failing to report such an "expenditure" or "contribution" on its finance disclosures to the FEC.
But there might be no additional FECA violation other than that. This is because the Supreme Court has held that candidates are not subject to contribution limits to their own campaign; such limits would violate the First Amendment.
On the other hand, if the Trump organization or some outside corporation — like an unrelated Delaware LLC, for example — made the payment to Daniels, it could arguably be both an illegal corporate contribution to the campaign, in addition to a failure by the campaign to report.
If Cohen made the payment in 2016 as he has said, it could be in excess of the individual contribution limit, which then was $2,700. However, Cohen taking the blame for the payment may also serve to protect Trump — the person and the campaign.
Cohen may claim that he was acting on his own, without the knowledge or blessing of Trump or his campaign. It may be a high-risk gambit: If payments were the act of a rogue individual, he and only he should be liable, not his boss.
Regardless of who the payment came from, it's likely the campaign should have at least disclosed this to the FEC if the payment had the improper purpose targeted by the FECA: influencing a campaign.
There is precedent for criminal charges against high-profile politicians for FECA and related crimes.
John Edwards, the former senator and Democratic vice-presidential nominee in 2004, was accused of soliciting and spending over $925,000 to hide his mistress and baby from the public during his 2008 presidential campaign. The Justice Department indicted Edwards, charging one count of conspiracy, four counts of receiving illegal campaign contributions and one count of false statements, for keeping the spending off the campaign's public finance reports.
The government's allegations centered on friends of Edwards who made payments to his mistress, supposedly to keep her from damaging his campaign. The Edwards case is instructive, not just as to the willingness of the DOJ to charge these cases, but also on the willingness of juries to convict.
At trial, a jury acquitted Edwards on charges related to payments made at the time he dropped out of the race or shortly after, presumably because those post-candidacy payments could not have influenced the campaign. The jury deadlocked on the remaining five counts. The jury may have been reluctant to convict, but the DOJ was certainly not reluctant to investigate, charge and take the case to trial.
The Edwards case differed on one major point. There was no evidence that Edwards' mistress received hush money specifically to prevent her from talking to the media, or to prevent her from derailing the campaign. Because of that, the Edwards' team could argue that any payments to the mistress were for a more common, personal reason: Edwards just wanted to keep the affair from his wife. Of course, if Trump were similarly accused, Trump could claim the same defense: Payments were made to Daniels for personal reasons, and not to influence the presidential campaign.
Trump's situation is different.
In the Edwards case, there was no evidence that his mistress was planning on doing a media "tell-all" tour. Daniels, according to The Wall Street Journal, "had been in talks" with ABC’s "Good Morning America" in the fall of 2016 about an appearance to discuss the alleged encounter.
The beneficial effect of Daniels' silence on the campaign could suggest the money was not about concealing infidelity from Trump's wife, but protecting the campaign and, the Justice Department or FEC may conclude, influencing the 2016 election.
Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.