How to Pay Off a Porn Star (If You Really Must)

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We’ve all been through that.

You’re running for federal office, the race is hot, the polls are tight, but you’re doing well. Then, whammo: a porn star tells you that she’s going to tell the world that you had an extramarital affair with her a few months after your wife gave birth to your youngest child.

How are you?

Of course you pay them.

Well, let’s not be hasty. Perhaps you should deny it and sit it out — a particularly attractive option when it’s a lie or a dubious claim that the vast majority of people, including your wife, would not find credible. Joe Biden did this in 2020 and won.

But you are not Joe Biden. You are a high-handed womanizer with a known history of extramarital affairs and allegations of sexual misconduct. Worse, the day before this pornstar approached you, the world learned that around the time of this alleged affair, you were also caught on tape bragging about being so famous you can do “anything” with women whatever you want, like “just start kissing her” or “grab her pussy”.

whoops

Your political allies, many of whom were already turning their noses up at your candidacy, began to back down. Party leaders denounced you and some officials asked you to withdraw from the race. You were dissed by your own comrade-in-arms. They had also only apologized for this behavior the day before and publicly vowed to “be a better man tomorrow”.

The election is only a few weeks away. You almost certainly wouldn’t survive, you can’t calm the woman down and the clock is running out. They also have lots of money and no shame.

So you pay them.

But how does one do it? Is it even legal? If so, are there any ways that might be illegal? You don’t want anyone breaking the law, do you?

This is the pickle Donald Trump was in when he allegedly instructed his personal attorney, Michael Cohen, to buy Stormy Daniels’ silence and then reimbursed him for corporate funds that were falsely labeled “legal fees” for an advance that was there not.

Federal prosecutors have called the scheme illegal, and Cohen served time for it after pleading guilty to his role and directly implicated Trump. Later, the Federal Election Commission’s Office of General Counsel found reason to believe that Trump, Cohen, the Trump campaign, and the Trump Organization had all violated the Campaign Finance Act.

Legal experts told The Daily Beast that the system poses several problems. The apparent violations were also detailed in the DOJ’s filings against Cohen and in the FEC’s General Counsel’s report.

While hush-money agreements are not illegal per se, these experts say that Cohen, Trump and the Trump Organization entered into an illegal agreement. Today, that agreement — for which Trump, unlike Cohen, has not been held legally accountable — appears poised to result in the first-ever indictment of a former US president. (Though these Manhattan prosecutors may need to move briskly to beat other competitors with strong cases against Trump.)

Paul S. Ryan, a campaign finance legal expert who filed the first FEC complaint about the payments, explained the setup.

“Federal law defines campaign spending as any money spent for the purpose of influencing an election. This hush money was clearly and demonstrably used to influence elections and was therefore clearly federal political expenditure. They would not have been made without the upcoming elections. That’s proof they were political,” Ryan said.

“Under the law, such a payment from Cohen, Trump and the Trump Organization is considered a contribution in kind, which is ‘everything of value’ to a candidate,” he continued. “These payments meet those definitions.”

Brendan Fischer, campaign finance legal specialist and deputy chief executive of watchdog group Documented, told The Daily Beast that transparency was at the heart of the scandal.

“One of the most important tenets of electoral law is that voters have the right to know who they’re voting for, how those candidates are spending money, and what they’re doing to get elected,” Fischer said. “These payments not only deprived voters of knowledge of the allegations, but also of the fact that Trump had paid for them.”

Reuters

However, Fischer said, “There are a number of arguably legal ways Trump could have made the payment without tipping voters.”

When Trump first had the opportunity to present Daniels with a non-disclosure agreement, he had a few options. He could pay her personally. He could have someone else make the payments and refund them later. Or he could pay them through the campaign.

Surprisingly, the clearest legal way is through campaigning.

“In the 2020 cycle, Trump has used extraordinary means to obfuscate where the campaign money is going,” Fischer said, referring to a shell company that processed nearly $1 billion in campaign payments. “If he had gone that route in 2016, not only might we never have known about the secret payments made to the former porn star, but he wouldn’t need to be charged.”

Had Trump used donor funds to pay off Daniels, and if the campaign had adequately disclosed those expenses, he could have structured them as a legal transaction. The difference, of course, is that it would also be public – but even that could be limited.

First, the campaign would likely have made the settlement payment to a law firm, not Daniels directly, and the questions very likely would have stopped there. In fact, the Trump campaign has paid settlements this way several times — including in 2016 — with some of the arbitration fees appearing in FEC reports.

Some legal experts have argued that if Trump did in fact pay with donor funds, that could also be construed as illegal — converting campaign funds for personal use. (Costs that an individual would have incurred “independently” of a campaign.) Up to this point, some Trump defense attorneys have cited the fact that Daniels first attempted to sell her story in 2011 — years before the campaign.

However, Daniels was also acting in the context of a presidential campaign – while Trump was publicly contemplating a possible run in 2012. Daniels made an agreement to direct the story life & style in April 2011, and Trump dropped his bid the next month. The magazine pulled the plug on Daniels that same month, and Trump associates had allegedly threatened her as well.

Brett Kappel, campaign finance specialist at Harmon Curran, noted that the fact that Trump didn’t pay through the campaign was “somewhat surprising” given that history.

“It’s somewhat surprising that he didn’t just use a law firm to hide the payment of campaign funds to Daniels as a legal settlement,” Kappel told The Daily Beast. “They started doing that during the 2016 campaign and have been doing it ever since to this day.”

He added that the decision “may have been because the payment had to be made so soon before the election”.

These campaign comparisons, like a $303,000 case last year, appear to involve the campaign’s NDA, which courts have held to be so broad that it is “unenforceable.” The agreement with Daniels was also found unenforceable, and in 2020 a court ordered Trump to pay Daniels $44,100 in attorneys’ fees.

Ryan said that in such cases, in the FEC’s eyes, it would not be unreasonable to list a severance payment paid to a law firm as “legal fees” for disclosure purposes – pointing out that like Kappel, Trump has done so on a regular basis.

“That’s a separate question from asking whether you paid Cohen an ‘upfront fee’ for ongoing legal advice that was never withheld,” he noted.

Fischer noted that while voters and journalists would have seen the payment to a law firm with a vague description, such disclosure “probably would not have revealed the story behind that payment.”

Furthermore, thanks to the FEC’s filing schedules, the public would not have known about it before the election.

Had the payment been made when Daniels first contacted Cohen on Oct. 8 — or at any point up to Oct. 19 — the transaction would have appeared in the campaign’s preliminary report, released Oct. 27 before the election were . But the actual payment, made on Oct. 26, would have surfaced in December’s Post-General Report.

It’s unclear if any campaign officials advised Cohen on the payment. It’s also unclear if anyone in the campaign besides Trump and Cohen even knew about it — Cohen’s indictment leaves that possibility open, citing coordination with “one or more members of the campaign.”

“If Trump had made an effort to get this right from the start, things would have turned out very differently,” Ryan said. “They would in all likelihood have avoided that cascade of dominoes that got him into the position he is today.”

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