SUMMARY: At a Monday rally, President Trump made comments about a caravan of Central American migrants that had fact-checkers on the alert. Since the President took office, they’ve identified 2,915 claims that cannot be verified by the truth. Daniel Dale, Washington bureau chief of the Toronto Star, joins Judy Woodruff to discuss Trump’s increasing rate of dishonesty and how the press should report on it.
Alan Dershowitz, the Harvard law school professor emeritus who often throws cold water on the dreams of anti-Trumpers, downplayed the significance of the latest revelations from Michael Cohen, President Donald Trump’s former personal lawyer.
Cohen told a federal judge Aug. 21 that Trump had directed him to pay two women $150,000 and $130,000 respectively to stay silent about their alleged affairs with Trump. In a federal court filing, Cohen said this was done to "influence the 2016 Presidential election."
Dershowitz said even if true, this hardly amounts to an impeachable offense.
"Any candidate has the right to pay hush money to somebody to influence the outcome of the election," he told CNN’s Chris Cuomo on Aug. 21. "The next question is whether it has to be reported, and is that a technical violation? When you think how many technical violations the Obama campaign committed and every other campaign committed, failure to report a contribution by the candidate itself is essentially jaywalking."
Assessing the legality of paying hush money comes down to a matter of legal opinion, not a fact-check. But one possibility is clear: On a legal basis, what Cohen described implicates Trump in something much more serious than a failure to fill out paperwork.
To recap the basics, Karen McDougal, a former Playboy model, and Stormy Daniels, the stage name of Stephanie Clifford, who directs and acts in pornographic films, have said they had sex with Trump. Trump has denied their stories. They had plans to go public. Both woman have said they were paid to keep quiet in the months leading up to election day 2016.
Personal or campaign expenses
The key divide among legal scholars is whether the payments should be seen as essentially personal.
Federal election law says something is personal if a candidate would have incurred the cost regardless of the campaign. The technical language is an expense that would "exist irrespective of the candidate’s election campaign."
So painting your house to make it look good in a campaign commercial wouldn’t be a campaign expense because sooner or later, every house needs a paint job.
"Paying blackmail for activities unrelated to the campaign is simply not a campaign expense," said Bradley Smith, former chair of the Federal Election Commission and law professor at Capital University Law School in Columbus, Ohio. "It is certainly legal for a candidate to pay hush money from other funds — other than campaign funds — even though it may benefit him as a candidate."
Smith said Trump could have had a couple good reasons to pay McDougal and Daniels, including "family harmony and commercial viability." Both considerations existed outside of Trump running for President.
If the payments weren’t strictly for the Trump campaign, then federal election law doesn’t apply.
It can, however, prove tricky to separate the personal from the campaign. Former Democratic Presidential candidate John Edwards faced charges that he made sure funds went to a mistress to hide their relationship. But prosecutors were unable to prove that the friends of Edwards who provided the money did so to further his campaign rather than protect his terminally ill wife from hearing such painful news.
Trump’s liberal use of his own money to finance his campaign makes it harder to separate the personal from the campaign. Candidates face no contribution limits, and he spent over $60 million to get himself elected.
Trump himself told Fox News Aug. 22 that it wasn’t a campaign expense, because he paid it himself.
But at the end of the day, the personal vs. campaign test isn’t based on the account the money came from, but whether the cost would have come regardless of Trump running for office.
If it were for the campaign
For Jerry Goldfeder, an attorney and author of a key law school text on election law, Cohen’s statement opens the door to some serious legal risks.
"I can recall no instance of a candidate paying ‘hush money,’ and cannot imagine the Federal Election Commission finding the Trump-Cohen payment to be a legal use of campaign funds," said Goldfeder, who is special counsel at 'Stroock & Stroock & Lavan.'
In the court filings, Cohen admitted that he "knowingly and willfully made and caused to be made a contribution to Individual-1 (identified as ‘a person who became President of the United States’) ... and his authorized political committee in excess of the limits of the Election Act ... and did so by making and causing to be made an expenditure, in cooperation, consultation, and concert with, and at the request and suggestion of one or more members of the campaign."
Cohen specifically said that the payments were "to ensure" that the two women "did not publicize damaging allegations before the 2016 Presidential election." He said all this was to influence the election. That in itself, though, wouldn’t necessarily make them illegal.
In a post on the Harvard Law Review blog, Harvard Law School lecturer Thomas Frampton cited a couple of Federal Election Commission rulings that said campaigns can spend money to fend off unfavorable publicity. For example, former U.S. Sen. Bob Kerrey was allowed to hire a public relations firm after the New York Times reported his possible ties to the massacre of civilians in Vietnam. If Kerrey hadn’t been a senator, the story might never have been investigated.
"Trump’s efforts to head-off the PR disaster that would have been Daniels’ press tour might count as a valid use of campaign resources," Frampton wrote Jan. 29.
Beyond technical lapses
Dershowitz put the legal hazard on par with jaywalking. A failure to tell the Federal Election Commission about a legal expenditure would hardly be the crime of the century.
But Northwestern University election law professor Michael Kang sees more.
"I think the differences here from the typical technical violations of campaign finance law are the size of the payments, which are far larger than the usual routine campaign finance violations, and the level of intentionality that we’re discovering," Kang said.
Intentionality is key.
Cohen described a careful process to pay McDougal and Daniels in ways that would fly beneath the radar. He created two shell companies to hide the source of the funds. He fronted the money, then submitted invoices for legal work he never did to get repaid by Trump.
And this is where the real legal hazard comes in.
That effort could run afoul of federal election law’s "knowing and willful" standard. While most reporting violations involve systemic accounting lapses that draw fines, a conscious scheme to keep activities hidden can trigger criminal penalties with a maximum penalty of five years in prison.
Trump tweeted Aug. 22, "President Obama had a big campaign finance violation and it was easily settled!"
The 2008 Obama campaign did pay a $375,000 fine for failing to file 48-hour reports on about 1,300 late arriving contributions worth about $1.8 million. But the Federal Election Commission treated that as an administrative infraction, not a ploy to deceive the public.
If Trump were in the dark about the payments, Frampton wrote, he would be on safe ground. But "if he was involved in orchestrating the pay-off," he could face charges.
Cohen says Trump was fully aware.
The case for Trump may turn on whether he actually was.
SUMMARY: Syndicated columnist Mark Shields and New York Times columnist David Brooks join Judy Woodruff to discuss the week’s news, including how President Trump has "politicized" security clearances, the rules of a reality TV White House and why diversity and loyalty to the administration will be two top issues in November’s elections.
Judy Woodruff (NewsHour): And now to the analysis of Shields and Brooks. That’s syndicated columnist Mark Shields and New York Times columnist David Brooks.
Hello, gentlemen.
Mark Shields, syndicated columnist: Judy.
Judy Woodruff: It’s good to see you both.
So, let’s start with the President and security clearances.
He is moving, David, this week to take away the security clearance — he did — of former CIA Director John Brennan, says he doesn’t like what he’s been saying and doing. He’s threatening to take away another one from a sitting, a current Justice Department official.
And he says this has been well-received, but what we’re seeing is, frankly, a flood of criticism, disagreement from the intelligence community, and including a letter from 15 top-ranking officials yesterday, 60 more tonight.
The Navy admiral, retired, who ran the Osama bin Laden raid, put out his own statement, call — defending John Brennan, whose clearance was taken away, and offering to have his own security clearance, give that up for the President.
What has Donald Trump accomplished by doing this?
David Brooks, New York Times: Well, I mean, he’s politicized something that probably shouldn’t be politicized.
But I confess I have trouble getting my knickers in a twist about this one. A lot of us don’t have security clearances. It doesn’t seem to be a problem in life. The reason they keep people on security clearance after their time in office is so they can offer advice.
And I think, frankly, it’s a little of a vanity thing, that people get to say, I still have my security clearance. And so, when it’s taken away — but John Brennan wasn’t giving the Trump administration advice anyway.
And so the idea they have to live without security clearance after they have been out of office doesn’t strike me as one of Donald Trump’s most massive transgressions in office. It doesn’t strike me particularly as a free speech issue.
John Brennan, the rest of us without security clearance are perfectly free to have our speech. And I guess there is some disadvantage, career disadvantage, to people who may be younger, but of the top 5,000 Trump transgressions, I wouldn’t put this high on the charts.
Judy Woodruff: Not a massive transgression, Mark?
Mark Shields: I disagree with David.
I begin with William McRaven, the former commander of the U.S. Special Command, who did lead the raid that took out Osama bin Laden in 2011, who is a retired admiral, who is not, let it be noted, talking head on television, never has been. He’s not somebody who comments.
He has been the chancellor of the University of Texas. He was known as Bull Frog, because that’s the senior member of the Navy SEALs, and he was the senior member of the Navy SEALs. He was a thoroughgoing professional.
And he emerged. And HE not only defended John Brennan, whom Donald Trump made it quite clear he’s attacking, he’s attacking because of the Russian investigation. He blames him, just as he got rid of James Comey, which he admitted, simply because he wanted to get rid of him and because he feared him, not because of the Rod Rosenstein memo on Comey’s dispassionate — less-than-dispassionate activity in the Hillary Clinton matter.
So what you have is somebody, McRaven, saying the following, “Through your actions, you have embarrassed us in the eyes of our children. You have humiliated us on the world stage and, worst of all, you have divided us as a country.”
Nobody has a right to a security clearance, but what Donald Trump has done is, he’s politicized it. And he has — this has never been done before. Security clearances are lost because of alcoholism, because of drug use, because of behavior that compromises your position with that kind of information.
There was no leaking of confidential information. If there had been, Donald Trump, who’s not very careful about his charges — remember the birther dispute — certainly would have raised that.
Judy Woodruff: So, David, what about Mark’s point, politicization, a chilling effect, which is a point that others have made?
David Brooks: Yes. No, I agree. I said it right at the beginning, that I think he’s politicizing something.
And the whole ethos of the whole Trump administration has been, it’s like a family business, and the norms and standards of our government are things they walk all over in pursuit of their own, Donald Trump’s own perpetual feuding, whoever he happens to be feuding with.
So I don’t want to emerge as the great defender of Donald Trump on this. I agree with the statements that have been made against him, but it just strikes me as — you know, it’s — will it have a chilling effect? I can’t imagine anybody of conscience, which I take Brennan to be, would inhibit his own statement of the truth because he’s going to — as a retiree, he’s getting his security clearance taken away.
And so I just — again, I don’t want to seem like I’m defending Trump. I just don’t think — it doesn’t rise to me to the level of high crimes and misdemeanors.
Judy Woodruff: Mark, the other person the President is attacking this week, on a different — from a different direction, is a woman who was very close to him, worked for him as an associate going back to the days of “The Apprentice,” the reality TV show he did for many years, goes back, I guess, 15 years, Omarosa Manigault-Newman.
She’s written a book. It’s very — it’s harshly critical of the President. A lot of people have questioned her credibility, but now she’s produced audio recordings to back up what is in the book. And we have learned now that there are video recordings as well.
She — when I interviewed her this week, she talked about it being a multimedia show.
Does either side of this story come out? Do we learn something, I guess, is the question, from this new exchange between the President and somebody who until just, what, earlier this year was a good friend of his?
Mark Shields: Yes.
I mean, in a White House where most of the people are recent acquaintances of the President, she goes back longer than anybody, except the President’s daughter. She goes back 15 years. She is a Donald Trump protege and product.
Her record for integrity is spotty at best. When Donald Trump made his famous announcement, the race-baiting announcement for President, she said, this will go down in history as the greatest announcement for President in the history of American politics.
And when asked about Donald Trump’s baiting of Mexican Americans, she said, that’s just Donald being Donald.
But what she does, obviously, like Elizabeth Warren, she gets under Donald Trump’s skin. And she has said things that, you know, may be subject to fact-check, but the reality is, she has tape. She has tape of Donald Trump groveling before her, pretending that he didn’t know that John Kelly had the day before brought her to the Situation Room, and say, this isn’t — I can’t — I’m just surprised, which therefore confirms the suspicion widely held that Donald Trump doesn’t have the stomach for confronting people who work for him, that he lies.
And you can see that he obviously is absolutely upset by her, and she’s got everybody in the White House, every male, quaking in his Guccis about those tapes. I can tell you that.
Judy Woodruff: So she’s gotten under his skin, David. And where do we go from here with this? We’re waiting to see what else she has.
David Brooks: Well, what’s interesting about her is, she plays by reality show rules. She plays by Trump rules.
And most people who go against Trump don’t quite play by his rules. And she plays by his rules, which is no rules, that do whatever you can, it doesn’t matter what the norms and standards are.
And taping somebody in the Situation Room is a rather serious offense and, to me, a pretty great betrayal of any — how any White House should work.
Judy Woodruff: The room where she was fired.
David Brooks: Right.
I mean, if we’re walking around each other in the hallway taping each other, just think about doing that. That’s just a betrayal of how normal life should happen.
Mark Shields: Is this being taped?
David Brooks: Yes.
(LAUGHTER)
David Brooks: This actually is being taped.
(LAUGHTER)
And so she said, they’re going to lie about me, they’re going to screw me, so I’m ready.
Mark Shields: She did.
David Brooks: And she played by their rules.
And so we’re getting a lesson in what reality TV morality looks like. And it is turning into just a reality TV show. The serious part — so I think they all look bad, frankly.
The serious part is that it’s — and especially the allegation, which she says with great conviction, that he used the N-word on a videotape back in “Apprentice” days — and if, as she says, is going to be used as an October surprise, then that puts race at the center of our electoral politics.
And all sorts of signs are pointing in this direction, that we’re going to wind up with an election where our political divides completely overlap — well, not completely, but largely overlap about racial divides.
And that’s just a ruinous prospect, that people are basically going to be voting, when race is a hot button issue, with a man who has a history of bigoted comments, and then voting along those lines.
SUMMARY: President Trump offered a new reason for a controversial June 2016 meeting that has become a central question of special counsel Robert Mueller's investigation into Russian interference in the election. The President tweeted on Sunday that the meeting was "to get information on an opponent" and "totally legal" -- the latest justification in a year of shifting stories. Yamiche Alcindor reports.
SUMMARY: In just the last few weeks, President Trump has made a number of misleading or inaccurate statements on subjects ranging from Russian interference, to farmers and trade, to NATO defense. Judy Woodruff takes a closer look with Peter Wehner who served in the last three Republican administrations, Lara Brown of George Washington University, and Domenico Montanaro of NPR.
President Donald Trump: Just remember, what you’re seeing and what you’re reading is not what’s happening.
