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The former chief lawyer for the Federal Election Commission said that Michael Cohen’s public statement confirming that he “facilitated” a $130,000 payment to a porn star in the closing weeks of the 2016 election may have been a “colossal screwup” that raises the chances that the agency could launch a formal investigation.
In the Friday episode of “Skullduggery,” a Yahoo News podcast, Lawrence Noble, who served for 13 years as the FEC’s general counsel, said Cohen’s statement could “ramp up” pressure on the agency to act — especially if the porn star, who goes by the name Stormy Daniels, now confirms that the payoff was directly linked to her keeping quiet during the election campaign about her alleged past relationship with President Trump.
“If she comes out and says, ‘They came to me and they said look, the election is in a couple of weeks, and we need you to be quiet before the election, and we don’t want this coming out, then I think the Trump campaign has a real problem,” said Noble, who now serves as chief counsel for the Campaign Legal Center, a watchdog group. “I think they have to be very nervous about that.”
That scenario could well be the case, according to a close friend of Daniels who told Yahoo News about his conversations with her. The porn star’s manager has said that Cohen’s public confirmation of the October 2016 payoff gives her ground to scrap a nondisclosure agreement she signed at the time and speak out publicly.
According to Daniels’s friend, who asked not to be publicly identified because of the potential impact on his business, there was never any question that the purpose of the payment was to buy her silence during the campaign.
“That’s exactly why that transaction took place,” said the friend, who discussed the matter on multiple occasions with Daniels at the time. “She was talking to ‘Good Morning America,’ she was talking to the media — and they paid her to keep her quiet. This was October and November.”
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Noble, in his interview with “Skullduggery,” said Cohen’s statement about the matter was inexplicable. Common Cause, citing media reports, had filed a formal complaint with the FEC against the Trump campaign and the Trump Organization, arguing that the payment to Daniels (whose real name is Stephanie Clifford) needed to be investigated as a potential violation of federal election law because it was not publicly reported and was far in excess of the $2,700 limit on individual contributions during a campaign.
But neither Daniels nor the Trump organization had publicly confirmed there was any such payment — until Cohen, the president’s longtime personal lawyer and pit bull defender, issued his statement this week. The statement purported to summarize his lawyer’s formal response to the Common Cause complaint that was submitted to the FEC.
Cohen’s carefully worded statement said: “I used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford. Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.”
But Cohen’s statement admitted only that he used his personal funds for facilitating the payment, not the payment itself. The facilitation, Noble said, could simply have been the cost of setting up a Delaware Limited Liability Corporation through which, according to the Wall Street Journal, the payment was made.
Cohen’s statement did not specifically say whether he also made the actual payment, leaving open the possibility that others — Trump himself, a friend, a corporation or even a foreign national — may have put up the funds.
What is striking, according to Noble, is that Cohen said anything publicly at all because he was under no obligation to do so.
“Why he went public I don’t know.” Noble said. “If I was his lawyer, I would have told him, ‘Don’t do this.’’
He added at another point: “This may have been a colossal screw up on his part.”
The FEC’s staff is prohibited by law from publicly releasing any responses to its complaints — so Cohen’s lawyer’s retort to the Common Cause complaint would have remained confidential. Moreover, the chances that the FEC would have actually launched a formal investigation — resulting in subpoenas and questioning of witnesses — would have been “slim.” Such a move would have required a vote by all four commissioners — including the two Republicans, who rarely support requests for formal investigations of campaigns.
But if Cohen’s statement prompts Daniels to speak out publicly and dispute his account, then the agency may have no choice then to act.
“I’ve been practicing campaign finance law for 40 years and I never expected to be talking about a president, his lawyer and a porn star,” Noble said on “Skullduggery.” “I don’t remember another case where we had a porn star as a witness.”
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