According to the New York Times, it is unlikely that federal prosecutors will bring any other charges related to the “hush money” paid by President Trump to conceal his affairs with Stormy Daniels and Karen McDougal.
That’s the right call. Indeed, as I’ve written before, prosecutors never should have filed charges against Trump lawyer Michael Cohen over the payments.
Under the Cohen prosecutors’ theory about the payments, Trump should have made the payments directly to Daniels and McDougal instead of funneling them through Cohen. He also should have disclosed the payments on his campaign finance reports.
But characterizing the payments as illegal campaign contributions is a dubious theory of the law. Indeed, similar charges were unsuccessful when filed against John Edwards after his failed bid for the presidency in 2008.
Moreover if Trump had made the payments and disclosed them, it would have become clear very quickly that he paid the two women not to reveal his affairs with them. Trump needed to funnel his payments through Cohen to keep his intimate relationships private. So while the arguments against Cohen and Trump alleged violations of campaign contribution limits, the arguments ultimately boiled down to the idea that Trump could not maintain his privacy about his sex life once he announced his candidacy.
Prosecutors should not interpret election law in a way that requires candidates to open for public scrutiny their consensual, intimate relationships. Candidates lose much of their privacy when they run for office. Their financial status and their health status are fair game. But hiding Trump’s affairs did not deny voters any information that was a legitimate matter of public concern during the 2016 presidential campaign. Neither Daniels nor McDougal has alleged sexual harassment, sexual assault, or other abuse by Trump. This was not a #MeToo moment. Voters do not have a meaningful interest in knowing about a candidate’s consensual, intimate relationships.
Some observers have argued that we were entitled to know whether Trump cheated on his spouses because it spoke to his fitness to serve. It’s not clear that marital infidelity is related to quality of service. In any event, we do not have to worry that the public was misinformed about Trump regarding his sex life. Anyone who cared about his marital infidelity already knew he cheated on his spouses. They also already knew he engaged in much worse sexual conduct—the sexual assaults that he described in the Access Hollywood tapes.
There are serious downsides to prosecuting candidates who try to hide information about consensual, intimate relationships. When the government starts policing the bedroom, it does more harm than good. Suppose a candidate for office is running in a community unfriendly to the LGTBQ community, and the candidate is secretly gay. A former lover threatens to disclose their relationship, and the candidate pays hush money. Is it a good idea to bring criminal charges against the candidate for violating campaign finance laws?
Dropping the hush money investigation is the right thing to do. Congressional committees should follow the lead of the prosecutors and turn their attention to the real concerns about President Trump’s conduct.