Former President Donald Trump will go on trial next week for felony charges stemming from a $130,000 payment made to adult film actress Stormy Daniels during his 2016 campaign—but while the “hush money” payment may be at the center of Trump’s alleged misdeeds, the act of paying Daniels to keep quiet isn’t actually what’s under legal scrutiny.
Adult film actress/director Stormy Daniels attends a book signing at the Hard Rock Hotel & Casino on ... [+]
Trump’s indictment stems from the $130,000 payment, which Trump’s ex-attorney Michael Cohen made to Daniels in October 2016 to cover up her allegations of having an affair with Trump in 2006.
Trump then allegedly reimbursed Cohen $420,000—consisting of the Daniels payment, a separate expense, a $60,000 bonus and enough to cover taxes on the payment—which were made through the Trump Organization, though many came out of Trump’s personal bank account, and were allegedly falsely labeled as being for legal services through a retainer agreement.
The $130,000 Trump and Cohen paid to silence Daniels is not actually illegal in itself: “Hush money” agreements that both parties enter into consensually, in which one party pays money to stop the other party from revealing information, are actually perfectly legal in themselves, University of Pennsylvania law professor Tess Wilkinson-Ryan told Slate.
Hush money payments can be illegal if they’re done to cover up a crime, or if it’s not a consensual agreement, such as in the case of blackmail or bribery, Wilkinson-Ryan noted.
In Trump’s case, he’s not being charged with making the payment itself or reimbursing it, but has only been indicted on 34 counts of falsifying business records, based on the fact that his reimbursement payments to Cohen were allegedly disguised as legal payments.
Even if hush money isn't inherently illegal, some prosecutors have argued the way Daniels was paid—through Cohen, right before the 2016 election—was a campaign finance crime: Cohen pleaded guilty to federal campaign finance violations in 2018, after the Department of Justice alleged the Daniels payment was effectively a donation to Trump's campaign that exceeded the legal limit on political contributions.
The alleged crime that Trump’s been charged with, falsification of business records, is typically classified as a misdemeanor under New York law, but is elevated to a felony when it’s done to facilitate another crime. That’s what prosecutors are alleging here—all 34 counts against Trump are classified as felonies—with Manhattan District Attorney Alvin Bragg arguing that the allegedly falsely labeled payments were done to cover up other crimes, including Cohen’s campaign finance crimes and alleged tax issues, as the payments to Cohen were falsely characterized as income rather than repayments.
Trump has pleaded not guilty to the charges against him, decrying the case as a “witch hunt.” His attorneys have argued in legal filings that Trump’s reimbursement checks to Cohen were not unlawful, writing Trump “cannot be said to have falsified business records of the Trump Organization by paying his personal attorney using his personal bank accounts.”
Trump’s criminal trial is set to begin Monday with jury selection and run for approximately six weeks. Each felony count that Trump’s been charged with is punishable by up to four years in prison and a $5,000 fine, though legal experts believe it’s unlikely Trump would be sentenced to prison as a first-time offender.
The payment to Daniels isn’t the only “hush money” payment that was made during Trump’s 2016 campaign, though it is the only one that’s directly at issue in the criminal case. American Media (AMI), which publishes the National Enquirer, also allegedly paid a doorman $30,000 to conceal a story about Trump having a child out of wedlock, even after it was determined to be false, and paid model Karen McDougal $150,000 to “catch and kill” her allegations of an affair with Trump. AMI CEO David Pecker discussed the payments with Trump and Cohen, prosecutors allege, and had a general agreement with them to hide negative stories during the campaign, but Trump did not reimburse either of those payments. AMI was allegedly about to transfer the rights to McDougal’s story to Cohen and have him reimburse the $150,000 payment, but ultimately didn’t at the last minute. McDougal and Pecker may testify at Trump’s trial.
Trump was indicted in March 2023 for his role in the “hush money” scheme, following a yearslong investigation by the Manhattan District Attorney’s office that first began in 2018. It has since become one of four criminal cases the ex-president now faces—along with two federal cases and another state case in Georgia—though it is the first of the cases to go to trial, with no set trial dates yet in any of the other cases. Cohen was sentenced to three years in prison for his role in the “hush money” plan and other crimes, entering prison in May 2019 and ending his sentence slightly early in November 2021. Though previously known as Trump’s “fixer,” the ex-attorney has since turned on the former president and is now considered one of his harshest critics.
Trump isn't the first politician to face charges related to hush money over an alleged affair. Onetime Democratic presidential candidate John Edwards was charged with breaking campaign finance laws after the DOJ argued he conspired to have political donors pay off a woman he had an affair with, in an effort to prevent a sex scandal from hurting his campaign. In that case, as with Trump’s, the alleged crime wasn’t the act of paying hush money itself, but instead was the way in which the money was paid out. Edwards admitted to an extramarital affair but argued the payments weren’t campaign contributions because they were meant to hide the affair from his wife, not from voters. He avoided conviction after the jury hung on most counts.