On Tuesday, Donald Trump’s long-time personal attorney Michael Cohen pled guilty to eight federal felony counts. Two counts were of particular interest, due to their implication of the President of the United States in criminal activity: counts seven and eight.
Count Seven relates to Mr. Cohen’s involvement in the hush money payment to former Playboy model Karen McDougal. Count Eight relates to Cohen’s involvement in the payoff of adult film actress Stormy Daniels.
While I deeply admire both women’s bodies of work, I want to take a deeper look at Count Seven today.
For background: Donald Trump had an affair with Karen McDougal in 2006 (while he was married to Melania, who had just given birth to son Barron). By “had an affair,” I do not mean they jointly hosted a haughty shindig. I mean they were playing “hide the cocktail weenie.” And by “hide the cocktail weenie,” I mean they were boning.
According to Mr. Cohen’s guilty plea, Trump directed Cohen in 2016 to arrange with American Media, Inc. (AMI), to deliver the monetary equivalent of 37,594 Big Macs to McDougal for (a) the rights to her story and (b) compensation for a recurring column in AMI’s publication, the National Enquirer. The Enquirer never ran McDougal’s personal story, nor did they run any columns in her name.
Taken together, these facts gave credence to the commonly held theory that the payment was part of a “catch and kill” arrangement to keep McDougal’s story from becoming public. This is not to be confused with the “stick and move” arrangement, of which Donald Trump is also a huge proponent.
In court, Michael Cohen testified as follows (emphasis mine):
As to Count No. Seven, on or about the summer of 2016, in coordination with, and at the direction of, a candidate for federal office, I and the CEO of a media company at the request of the candidate worked together to keep an individual with information that would be harmful to the candidate and to the campaign from publicly disclosing this information. After a number of discussions, we eventually accomplished the goal by the media company entering into a contract with the individual under which she received compensation of $150,000. I participated in this conduct, which on my part took place in Manhattan, for the principal purpose of influencing the election.
As is taught in all of the best colleges, paying someone to stay quiet isn’t necessarily illegal, especially when the underlying act for which you want someone to shut up is itself legal. It’s 100% legal, albeit shitty and immoral, to shtupp Playboy model(s) while your infant fifth child is at home, being cared for by your third wife. Contrary to popular belief, this is not how Fifth Third Bank got its name. To be clear, there are consequences for such ugly acts, but those consequences don’t include getting sent to San Quentin. It turns out there’s a sizable water hazard between “being an abject douche nozzle” and “being a future inmate.” That explains why Ted Cruz sports Brooks Brothers attire instead of orange jumpsuits. #betofortexas
It is, however, illegal for companies to give money to or on behalf of political candidates, and it’s illegal for candidates to accept money from companies. The relevant part of the statute (52 U.S.C. 30118(a)) says:
It is unlawful for […] any corporation […] to make a contribution or expenditure in connection with any election to any political office, […] or for any candidate […] or other person knowingly to accept or receive any contribution prohibited by this section[…].
What happens if you Trumpianly flout this law? Thankfully, 52 U.S.C. 30109(d)(1)(A) tells us:
Any person who knowingly and willfully commits a violation of any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure aggregating $25,000 or more during a calendar year shall be fined under title 18, or imprisoned for not more than 5 years, or both[.]
Cohen asserted—under oath—that in 2016, then-candidate Donald Trump directed him to give Karen McDougal $150,000 through AMI for the express purpose of influencing the presidential election by keeping her lurid story out of the press. He did it knowingly and willfully. He knew it was illegal and he did it anyway. To paraphrase late 20th century philosopher Billy Madison, “That’s a felony, brotha.”
If this were a meme, sunglasses and a joint would descend upon Mr. Cohen’s face to indicate his commitment to the Thug Life. But it’s not a meme, it’s a blog post, so you’ll have to settle for my narrative explanation of it. Sorry.
And remember, Cohen knew on Tuesday that admitting these acts would send him to federal prison and eliminate any possibility of a pardon from the President.
Now I can be a vindictive jerk at times, but it’s hard to imagine a scenario where I would lie, and in doing so, knowingly send myself to prison, just to take an adversary down. That’s just not how humans work – especially humans as self-interested as those in the President’s inner circle.
It’s important to keep this in mind, too: people don’t plead guilty if the Government has no evidence on which to convict. Especially lawyers who have a baseline understanding of this stuff.
Stated differently, if Cohen pled guilty, you can rest assured the Feds showed him a mountain of damning evidence before he made that plea. He weighed his options: (a) fight the case and watch the prosecutors trot out a litany of embarrassing, slam-dunk evidence against him, and almost certainly lose, or (b) admit his mistakes in the hopes the prosecutors and court will go easy on him in appreciation of his acceptance of his wrongdoing.
And given that we didn’t see any charges until Cohen pled guilty to them, it’s safe to assume the charges themselves represent prosecutorial deference. That is, the Feds were likely going to bring more, even harsher charges had Cohen elected to stand steadfast and force a full trial, and Cohen likely knew that the Feds’ evidence against him meant he would lose on every count.
There’s an old adage, attributed to Mark Twain, Abraham Lincoln, Captain James T. Kirk, the Book of Proverbs, and countless others, that goes like this:
Better to remain silent and be thought a fool than to speak and remove all doubt.
Ever a believer in testing commonly held beliefs, Donald Trump rushed to the Fox News Channel challenge this aphorism.
Thursday morning, in a hard-hitting interview (pause for readers’ spit-takes) with Ainsley Earhardt on Fox & Friends, the President of the United States said the following (emphasis mine):
But you have to understand, Ainsley. What he did—and they weren’t taken out of campaign finance. That’s a big thing. That’s a much bigger thing—did they come out of the campaign. They didn’t come out of the campaign. They came from me.
Again, it’s not a crime to pay people to stay quiet about when and where one inserts one’s orange, doughy, McRib-scented appendages. But it is a federal felony to knowingly and willfully pay someone $150,000 to stay quiet as a means of advancing your candidacy for President of the United States.
For those of you who give great deference to the former star of TV’s The Apprentice, let me phrase this a little differently:
The now-President of the United States knew that some of his would-be voters would be turned off if they discovered he’d taken a take a roll in the hay with a Playboy Bunny. He likely knew his wife Melania would be none too pleased, as well. He was certainly made aware—via his attorneys and advisers—that he couldn’t legally pay Ms. McDougal from the campaign coffers without in turn reporting that payment to the Federal Election Commission.
And that, dear readers, would defeat the purpose of paying the nice lady sums of money intended for the purposes of hush.
So, rather than be transparent and trust our democracy to make the best decision, Donald Trump rigged the game.
Donald Trump arranged to have Ms. McDougal paid, through AMI and Michael Cohen, to ensure her silence. He paid her out of his own pocket, as admitted to the modern day, one-woman Spanish Inquisition, Ainsley Earhardt of Fox News.
He did it because, in the days before this decision, the entire world bore aural witness to his sexual playbook through an overheard convo with Billy Bush on the Access Hollywood bus.
He did it because he knew his chances were slim, and he couldn’t afford to lose even any of the mere 79,646 votes in three states that edged him over the Electoral College line into the White House.
He did it because he knew that if all of the information was out there, he’d lose. He did it because he knew that if every voter knew what we all know now, a few of them would stay home.
He did it because he wanted power more than he wanted democracy.
Now what are WE going to do about it?
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