Why Trump’s Hush Money Matters
Donald Trump’s defenders would love for people to believe that the former president entered into totally normal, by-the-book, run-of-the-mill legal agreements with adult film actress Stormy Daniels and Playboy model Karen McDougal to purchase their silence, and that he did so in a way that was agreeable and beneficial to all parties.
But that’s not what happened.
Trump risks indictment because, allegedly at his behest, an illegal scheme was undertaken to deceive the public at a critical moment before the 2016 election. That was the purpose of the “hush money” payments—not to enrich the women or settle a personal matter, but, in the words of the man who went to prison for arranging the deals, “for the principal purpose of influencing the election.”
A reminder of what really happened: In 2016, Daniels and McDougal each wanted to sell her own story about liaisons with Trump to the press. Daniels had previously pitched the media about her tawdry escapades with Trump, but after he became the Republican nominee in that year’s presidential election, both women understood that their stories now had significant news and monetary value. They had credible information relevant to the question of Trump’s fitness for office. Trump and his team understood the importance of suppressing the stories to help him win the election.
In exchange for the rights to McDougal’s story, American Media Inc.—the parent company of the National Enquirer—in August 2016 promised her a six-figure compensation package plus a regular magazine column. But even though she agreed not to discuss her story with anyone else, it was not going to be published at all. It turns out that what McDougal had actually sold to the tabloid was her silence.
Daniels, who also had been in talks with the Enquirer’s parent company, instead made a deal with Trump’s lawyer Michael Cohen just two weeks before the election. She, too, pledged to keep quiet.
And then Trump won the election.
There is no question that these deals were illegally made. We know this because the men who set them up have admitted their guilt, and further admitted to having done so to assist Trump’s campaign.
David Pecker—who at the time was the CEO of American Media Inc.—admitted as part of a non-prosecution agreement that “in cooperation, consultation, and concert with, and at the request and suggestion of” the Trump campaign, he engaged in what is called a “catch and kill” scheme to secure the rights to McDougal’s story with no intention of ever publishing it. In this, he came through on a commitment he made to the Trump campaign in August 2015 to seek out “negative stories about [the] presidential candidate’s relationships with women” so as to help prevent them from becoming public—another admission he made in the course of the non-prosecution agreement.
Pecker’s testimony was then used to elicit a guilty plea from Trump’s lawyer Michael Cohen, who admitted to illegally securing payments to McDougal and Daniels to influence the election. Cohen spent more than a year in prison and a year and a half in home confinement for his crimes. The eight criminal counts to which he pleaded guilty included “two counts of illegal campaign contributions related to payments to women.” The Wall Street Journal summarized the nature of those violations:
Under federal law, individual campaign contributions are limited to a total of $5,400 for each election cycle, including primary and general election votes, and corporate contributions are barred.
Conspiring to cause an excessive campaign contribution of more than $25,000 is an indictable offense and a felony.
While pleading guilty, Cohen directly implicated his former boss in the schemes to prevent the publication of Daniels’s and McDougal’s stories. As a sitting president, Trump could not be indicted, per guidance from the Department of Justice’s Office of Legal Counsel. But that was in 2018; he does not enjoy the same protection now. An effective criminal justice system would not look past Trump’s role in orchestrating these crimes.
Still, among Trump’s friends and foes alike, it is commonly held that the hush money case isn’t as meaningful as the other investigations and legal challenges Trump is facing, including those pertaining to the January 6th insurrection, his efforts to overturn the 2020 election, the classified documents found at Mar-a-Lago, and the scandals related to his various businesses. (Kim Wehle summarizes the ongoing investigations here.) Therefore, some Trump critics think, maybe the Manhattan district attorney should hold off on indicting Trump so the marquee charges against him can be brought first.
But had voters known about Trump’s indiscretions with Daniels and McDougal, Trump may never have become president in 2016. His margin of victory over Hillary Clinton was slim: Just 80,000 voters in three states put him over the top in the Electoral College.
Say what you will about the questionable life decisions made by Daniels and McDougal, but they own their actions and who they are. (Anyone remember “Make America Horny Again”?) Yet even after two presidential campaigns, the same can’t be said for Trump.
Team Trump had locked the McDougal story down in August 2016. And after the release of the Access Hollywood tape in early October 2016, Cohen quickly moved to reach an agreement with Daniels, too.
The hush money did what Trump wanted it to do: It kept the women from talking. The Wall Street Journal published a story on November 4, 2016 that focused mainly on McDougal’s hush money but also mentioned that Daniels had previously sought to speak with ABC News about her relationship with Trump. The Trump campaign vociferously denied the allegations, and McDougal and Daniels did not comment. Since McDougal and Daniels were unwilling to go on record, the story didn’t get much traction at the time.
So Trump barrelled on toward the election on November 8. Despite his personal scandals, the GOP rallied around him, and he went on to the White House.
The public would first learn of the Daniels payments through a Wall Street Journal article published in January 2018. When the story came out, Trump denied it, and Daniels claims that Cohen used “intimidation and coercive tactics,” such as initiating “a bogus arbitration proceeding” against her, to force her to sign a false statement denying the affair. (This is more than a step beyond whatever was entailed by the “hush agreement,” and as Colin Kalmbacher noted at the time, these alleged actions would have been clear ethical violations for Cohen.) Ronan Farrow soon followed the WSJ article about Daniels with his bombshell New Yorker story about the payments to McDougal.
As a result of the combined reporting and public follow-up on their stories, the women took their cases to court, where it was established that the hush money agreements were pretty much bullshit and they were free to speak.
A judge threw out Daniels’s lawsuit against Trump on the grounds that the nondisclosure agreement, which stipulated that she would owe $1 million to Trump every time she discussed her story in public, was not enforceable because Trump had never signed it. McDougal sued AMI, claiming she was misled into her hush agreement, and the company reached a settlement with her that freed her to discuss her story, although the company retains the right to some future profits resulting from her telling it.
The same summer that Trump’s team was seeking to quash these stories, another high-ranking Republican official was starting a prison term because of a case involving hush money. The story of the terrible crimes and the prosecution of former Speaker of the House Dennis Hastert is very different from Trump’s story, but it nevertheless provides some useful points of comparison.
When he was a high-school wrestling coach in the 1960s through 1980s, Hastert molested at least four boys. In 2010, one of them—referenced as “Individual A” in court documents—confronted Hastert, and the retired congressman agreed to pay the man $3.5 million to stay quiet about the abuse. A few years later, the FBI and IRS began investigating Hastert for making unusual bank withdrawals. While Hastert originally claimed to investigators that he was taking out the money because he didn’t trust the banks, his lawyer later told investigators Hastert had made the withdrawals because he was being extorted by Individual A.
Recall that Trump also accused Daniels of extortion.
It didn’t work for Hastert. He went to prison, but not for the reasons you might think.
Due to the statute of limitations, Hastert could not be prosecuted for his crimes against boys, although he admitted to the abuse during his sentencing hearing. Rather, he was put away for illegally structuring the hush money payments. He reported to prison in June 2016, and ultimately served 13 months of a 15-month sentence.
A common refrain from people uncomfortable with prosecuting Trump is that hush money payments are “nothing new,” as though that makes them less objectionable.
But for just a moment, let’s set aside the questions of legality and instead think about the morality of hush money payments.
Fox News has spent tens of millions of dollars to prevent female employees from publicly discussing the alleged sexual harassment they faced from former CEO Roger Ailes and former host Bill O’Reilly. And former Democratic presidential candidate John Edwards was tried for (but not convicted of) funneling hush money to his pregnant mistress during his 2008 campaign.
The core purpose of hush money and nondisclosure agreements is to stop people from going on the record, and this often allows malevolent actors to continue to amass, enjoy, and abuse their power.
It’s not an accident that the reporter who exposed the payments to Karen McDougal, Ronan Farrow, also penned the devastating exposé that brought down film executive Harvey Weinstein. Farrow showed how Weinstein used nondisclosure agreements and other legal threats to silence the women he abused, and Farrow’s reporting contributed to a new public awareness of how these tools were being used by powerful people to manipulate their victims into silence and submission. Spurred by Farrow’s reporting, other women felt encouraged to go on the record about Weinstein’s crimes, helping to launch the #MeToo movement; this new reckoning led to the criminal prosecution of Weinstein, who is now serving a 23-year prison sentence in New York. Last month, he was sentenced by a California court to serve an additional 16 years in prison for crimes he committed in that state.
No one should kid themselves about who the hush money in such cases is meant to protect. I’ll give you a hint: It’s not the people being instructed to stay quiet.
Which is why—in terms of morality as much as of justice, the law, and politics—Trump’s hush money matters. But you aren’t supposed to know that.