Private or political? Charges over hush money hinge on payment’s purpose

Is paying hush money a crime?

In most cases, the answer is no. Hush money agreements, also known as nondisclosure agreements, have long been used by companies and private individuals to avoid litigation and keep embarrassing information confidential. Harvey Weinstein, the former producer convicted of rape, used such agreements for years to conceal his harassment and assault of women.

But the question is thornier when it comes to candidates in the midst of political campaigns, and it has not often been posed in federal or New York state courts.

As it relates to former President Donald Trump and porn star Stormy Daniels, the Manhattan district attorney, Alvin Bragg, revealed his answer Tuesday when he unsealed an indictment of Trump: A hush money payment can constitute a crime if made to protect a political candidate.

All of the felony counts Trump is facing stem from reimbursements to his former fixer, Michael Cohen, for paying $130,000 to Daniels in exchange for her silence about the liaison she said she had with Trump.

Having charged Trump with falsifying business records, Bragg’s office will have to navigate complicated legal terrain. A conviction would hinge on proving that reimbursements to Cohen were falsely disguised as legal fees to conceal another crime: perhaps a violation of election laws. The indictment did not, however, charge Trump with an election law violation; Cohen has admitted to committing one with the payment to Daniels.

The case bears some similarities to the prosecution of a former U.S. senator, John Edwards of North Carolina, who was charged in 2011 with federal campaign finance violations for payments to help a mistress during his own presidential run in 2008. The case ended without a conviction.

Federal and state campaign laws require reporting of campaign-related payments, and if they are made by third parties coordinating with the candidate, such as Cohen, they are subject to certain limits. Cohen’s payment to Daniels before the 2016 presidential election was well beyond the federal legal limit.

The indictment of Trump charged him with 34 counts of falsifying business records in reimbursing Cohen for the hush money. Trump, who is once more seeking the Republican nomination for president, has denied sleeping with Daniels; called the prosecution by Bragg, a Democrat, political; and said he has done nothing wrong. Appearing in a state Supreme Court Tuesday, he pleaded not guilty.

On its own, falsifying business records is a misdemeanor in New York state — but it can be charged as a felony if it is intended to conceal another crime. In this case, the indictment accuses him of falsifying business records; an accompanying statement of facts says Trump orchestrated a scheme to violate election laws.

Proving that element will most likely hinge on whether the hush money is interpreted to have been paid in the service of Trump’s 2016 presidential campaign or for personal reasons, such as shielding his wife, Melania, and youngest son, Barron, from Daniels’ story.

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