Free Speech For People has filed a brief in its lawsuit against the Federal Election Commission for failing to investigate a $150,000 “hush money” payment made in 2016 to Karen McDougal, one of President Trump’s former mistresses, as a potential violation of federal campaign finance law. The investigation is necessary because, even after federal prosecutors have investigated some of the parties involved, critical questions remain unsettled—including the exact nature of President Trump’s role. The Department of Justice is unlikely to press further against Trump or his campaign, so the American public needs an investigation by the independent bipartisan Federal Election Commission.
The lawsuit challenges the Federal Election Commission’s failure to act on a 2018 administrative complaint from Free Speech For People. That complaint (which was amended in April and July 2018) presented evidence that President Trump, his campaign, and his personal lawyer and campaign operative Michael Cohen arranged for American Media Inc. (the publisher of the National Enquirer) to pay $150,000 to buy the silence of Karen McDougal, a former Trump mistress, in the 2016 election. Federal prosecutors have concluded proceedings against Cohen, who pleaded guilty, and American Media, which entered into a non-prosecution agreement, for violating the Federal Election Campaign Act.
The FEC moved to dismiss our complaint on the theory that Free Speech For People lacks “standing.” The FEC argues that we haven’t suffered any “injury” because we haven’t been deprived of any information.
But as we argue in today’s brief, that’s incorrect. We have been deprived of information. To be sure, Cohen’s and AMI’s responsibility seems to be established, and Cohen has said that he arranged the McDougal hush money “at the direction of, and in coordination with” the president. However, Trump and his team have consistently denied Trump’s involvement in the McDougal payoff. Instead, Trump and his allies have publicly accused Cohen of lying to get a better deal from prosecutors.
As events in Washington, D.C. accelerate, the American people deserve to learn the truth about what happened in the 2016 election. But neither prosecutors nor Congress seem inclined to dig any further into the hush money payoff. That’s why we need an FEC investigation to determine the nature of Trump’s involvement—ideally, under oath—so that we can inform the broader public. (And in the short term, the FEC needs more commissioners confirmed so that Commission can reliably make its quorum.)
The FEC will get one more opportunity to brief the court on this question, and then the court will decide whether to hold oral argument or just decide on the papers.
We are grateful to Jessica Kim and Douglas Bunch at the law firm of Cohen Milstein Sellers & Toll PLLC for assistance with this case.
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