On April 15, 2024, disgraced ex-president Donald Trump will face trial in a New York state courtroom for falsifying business records related to hush-money payments he made to buy the silence of a former mistress during the 2016 election campaign. It’s worth retracing how we got here: specifically, how both the Federal Election Commission and the U.S. Department of Justice failed to enforce federal campaign finance law, leaving it to the Manhattan district attorney to seek some measure of justice. 

In the summer and fall of 2016, with the presidential campaign in full swing, Trump (through his former personal attorney and fixer, Michael Cohen) arranged for hush-money payments to two former mistresses: Stormy Daniels (with whom he’d had an extramarital sexual encounter in 2006) and Karen McDougal (with whom he’d had a series of extramarital sexual encounters from 2006-2007). Cohen paid Daniels $130,000 through Essential Consultants LLC, a limited liability company that Cohen set up for the occasion, in exchange for keeping quiet about an extramarital sexual encounter that Trump had with her in 2006; in McDougal’s case, Cohen arranged for AMI, the corporation that owns the National Enquirer, to buy the rights to McDougal’s story and then not publish it.

The issue here is not Donald Trump’s sexual encounters, nor even the fact of the hush money;

in general, there is nothing illegal about a wealthy philanderer paying off his former mistresses to keep silent about his extramarital affairs. But Trump wasn’t just any wealthy philanderer—he was a candidate for federal office, and the hush money was intended to influence the election. As Trump’s lawyer Rudy Giuliani later (perhaps inadvertently) confirmed, the purpose of this expense was obviously campaign-related: “Imagine if that came out on Oct. 15, 2016, in the middle of the, you know, last debate with Hillary Clinton.” The Daniels agreement, ultimately signed on October 28, 2016, only came to light in 2018. And when money is spent to influence an election, campaign finance law comes into play.

Federal campaign finance law

The Federal Election Campaign Act, passed in 1974 after the Watergate scandal, is built on the principle of transparency. Candidates for federal office must disclose to the public how much money they’re spending on their campaigns, and for what. Failing to disclose spending to influence the election can be a civil or even criminal violation. In fact, because every American has the right to know this information, the statute even allows private citizens or organizations to file a complaint with the bipartisan Federal Election Commission, which must investigate the complaint and issue a written decision.

Under the Federal Election Campaign Act, Trump’s hush-money payments constituted campaign spending. Trump’s affairs with these women had ended years ago; Cohen contacted them in 2016 because Trump’s team worried that disclosure during the campaign season might damage him politically. That was a reasonable fear; after all, similar revelations about Bill Clinton’s infidelities had nearly derailed his 1992 presidential bid. (This was also before Trump’s “grab them by the pussy” video was released.) So paying these ex-lovers to keep silent helped his campaign—exactly the sort of expense that Trump’s campaign was legally required to disclose on campaign spending reports filed with the Federal Election Commission.

Wait, you may say—disclosing that he paid hundreds of thousands of dollars to ex-lovers to buy their silence would defeat the purpose of the payments. After all, he spent the money to keep secrets, not to reveal them. But that is the price you pay when you decide to run for President of the United States: you are legally obligated to disclose certain matters that a purely private citizen might keep secret. So Trump’s failure to report these expenses violated the Federal Election Campaign Act.

But it gets worse. Most violations of the Act are purely civil—the only penalty is a monetary fine. Trump, however, compounded his guilt by taking further steps to conceal the payments. Working with Cohen and with executives at his business, the Trump Organization, Trump arranged schemes to hide the payments even further. For the payments to Stormy Daniels, Cohen fronted the money, then issued fake legal invoices to the Trump Organization, which paid them from business coffers as if they were legal bills rather than hush-money payments. (Trump personally signed at least one of the checks.) For the payments to McDougal, Cohen arranged for AMI (whose CEO, David Pecker, was a close Trump ally) to pay off McDougal.

The Federal Election Commission’s failure to hold Trump accountable

Soon after these schemes were revealed, we at Free Speech For People filed a formal complaint with the Federal Election Commission over the McDougal payments; another watchdog group, Common Cause, filed a similar complaint. But the Commission, riven by partisan deadlock, stalled. In 2019—a year after we’d filed our complaint—we were forced to sue the Commission over its delay. Finally, in June 2021, the Commission released its findings. The Commission’s nonpartisan professional staff recommended finding that AMI, Pecker, Trump, and the Trump campaign committee committed multiple violations of federal campaign finance law. Furthermore, the professional staff recommended finding that the violations were “knowing and willful”—which make a campaign finance violation a criminal matter. But the Commission, in a party-line split, voted to find only AMI and Pecker responsible.

Similarly, in the Stormy Daniels case, the Commission’s professional staff recommended finding that Cohen, Trump, the Trump campaign committee, and the Trump Organization violated multiple provisions of the Act, and that the violations were “knowing and willful.” Once again, the Commission split along party lines, and wound up not enforcing anything against anyone.  

Federal prosecutors’ failure to hold Trump accountable

Along the way, federal prosecutors in the Southern District of New York became interested in some aspects of the hush money payments. In 2018, prosecutors charged Cohen with federal campaign finance crimes carried out to benefit “Individual-1,” who by January 2017 “had become the President of the United States.” (Not a lot of people fit into that category, but in case there was any confusion, Cohen told Congress under oath that “for the record, individual No. 1 is President Donald J. Trump.”) As explained in the criminal information, Cohen arranged for payments to two former Trump mistresses to buy their silence for the purpose of influencing the 2016 election, in violation of the Federal Election Campaign Act. Cohen pleaded guilty. He told a federal judge and Congress that he arranged these payments “at the request of the candidate,” and his crimes were committed “for the benefit of, at the direction of, and in coordination with” Trump. In the end, he was sentenced to three years in federal prison, ultimately serving a little over thirteen months for these felonies he committed “at the direction of, and in coordination with … Donald J. Trump.”

But federal prosecutors did not charge Trump with any of these violations.

At first, it appeared that federal prosecutors were not charging Trump because of an internal Department of Justice policy that prohibits charging a sitting president with crimes. On January 13, 2021, we explained in the Los Angeles Times why the incoming attorney general should establish an independent task force to coordinate federal investigations relating to evidence of Trump’s misconduct, and we specifically noted these campaign finance crimes among them. As we pointed out, the Department’s policy against prosecuting a sitting president “no longer applies once the president’s term is over.”

Merrick Garland Abandons Prosecuting Trump’s Pre-2020 Crimes

On Friday, November 18, 2022, in a move that few noticed at the time, Attorney General Merrick Garland officially abandoned even the pretense of ever holding Donald Trump accountable for multiple crimes that the Department of Justice already found Trump had committed, including these campaign finance crimes.

As we explained in JURIST a few months later:

In explaining why he appointed a special counsel, Garland cited “the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well,” as motivating his conclusion “that it is in the public interest to appoint a Special Counsel.”

Those reasons, if taken seriously, would apply to all potential criminal investigations involving Trump. But Garland’s appointment order makes no mention of . . . Trump’s crimes identified by federal prosecutors in their 2018 charges against Michael Cohen. His order’s scope is expressly limited to Trump’s attempt to subvert the election, the ongoing investigation Mar-a-Lago investigation, and matters arising from these investigations.

In other words, Garland has done something quietly sneaky. By announcing a special counsel appointment predicated on Trump’s candidacy, then excluding from the special counsel’s scope the “shelf-ready” . . . campaign finance crimes already identified by Manhattan prosecutors (in the Trump administration, no less), Garland is telling us between the lines that that he is giving up on all of Trump’s pre-2020 crimes. Through this limited scope for the special counsel, Garland has given Trump blanket immunity for federal crimes that the department has already identified that Trump committed during the 2016 election and throughout the majority of his corrupt presidency.

The New York state investigation

In 2018, the Manhattan District Attorney’s office opened an investigation into these matters to determine whether Trump Organization officials, or later Trump himself, had violated any New York state law with this scheme. The investigation appeared to stall at various points.

But on Monday, November 21, 2022—the first business day after Garland’s special counsel appointment order announcing that federal prosecutors would not pursue the matter—the Manhattan District Attorney’s office renewed its investigation. And on March 30, 2023, a grand jury indicted Trump on 34 felony charges of falsifying business records in the first degree. These charges center on the false invoices that Cohen submitted, with Trump’s approval, to the Trump Organization for repayment for bogus “legal services” that actually were just reimbursements for the payoff to Daniels. And because the business records were falsified to conceal another crime (the federal campaign finance violations), that makes them felonies in New York.

Why we’re here

This never should have been left on the shoulders of the Manhattan District Attorney. Federal prosecutors should have charged Trump—if not during his presidency, then shortly after he became a private citizen.

But the Manhattan DA stepped up where the Department of Justice failed. And while some have criticized the New York charges as ostensibly less important than some of Trump’s other criminal cases (including two federal cases against him, in federal and Georgia state court, for subverting the 2020 election, and a federal case against him in Florida for theft of national defense information and conspiracies to obstruct the investigation), the fact that Trump was never held accountable (not even for civil penalties by the FEC) for his 2016 election violations—which may have determined the final outcome of that election—set  the stage for his later crimes. Furthermore, the Manhattan DA’s case is actually coming to trial, while Trump (and Trump-friendly judges) have found ways to stall those other cases.

After years of impunity, Trump is finally being held to account. Of course, like all criminal defendants, he is innocent until proven guilty, and the jury may only find him guilty beyond a reasonable doubt based on the facts proven at trial. But, for the first time in his life, Donald Trump must stand trial for his crimes, and that in itself is a form of justice.