The Irrelevance of Stormy Daniels

Is Stormy Daniels relevant? The latest attempt by progressives and their kept media allies to attack President Trump involves a purported “hush-money” payment (in politer circles, this is called a “non-disclosure” agreement) of $130,000 to Daniels, the stage name of a famous porn star, in order to conceal an alleged decade-old affair.

Extramarital dalliances of American politicians are nothing new; similar scandals involved Alexander Hamilton and Thomas Jefferson, for example, though in both cases neither was fatal to their careers. From the time of the early republic, it was recognized that even politicians are only human and subject to human weaknesses and that even though it was wrong for men to be involved with women not their wives, in general such a moral lapse was a matter for resolution by family, not by politics. Sexual affairs for much of American history were treated as off-limits to public discussion, resulting, for example, in the concealment of all manner of improprieties in the private life of John F. Kennedy, even while he was president.

Misremembering Clinton’s Impeachement
This all changed, perhaps, with Bill Clinton, when, it was said, the Republicans made Clinton’s escapades with an intern the subject of impeachment proceedings against the president. For the Republicans, however, it was not Clinton’s priapic conduct that was at issue. Rather, it was his misuse of the legal process to conceal his private misconduct, involving quite provable charges that he perjured himself, tampered with witnesses, and in general obstructed justice in order both to protect his reputation and to avoid liability in a civil suit against him.

Clinton’s defenders, purportedly principled persons such as famed historian Arthur Schlesinger, Jr. defended that president with the suggestion that “gentlemen lie about sex,” which defense was questionable on a number of grounds, including, of course, the fact that Clinton was no gentleman. A more subtle defense was made by law professor Cass Sunstein, who claimed that it was appropriate to impeach a president for perjury or obstruction of justice which involved a grave betrayal of the interests of the state, but not for concealing mere sexual liaisons.

So, by Sunstein’s reckoning, Stormy Daniels probably should be off limits. But those attacking Trump have been asserting a claim that the payment to Daniels, and the attempt to conceal it, violate our campaign finance laws, and that as such a violation it is entirely appropriate to fault Trump with the same kind of obstruction of justice argument brought against Clinton by Republicans.

A Bit of a Stretch
Does this make any sense? The alleged $130,000 payoff to Daniels for her silence (which seems to have been a rather poor investment, since she has been anything but silent) was apparently made by Trump’s lawyer, through a Delaware LLC (a form of business entity) created perhaps for that purpose. It’s illegal for corporations (and, presumably LLCs) to make campaign contributions to individual candidates, so that if the payoff to Daniels was an attempt to prevent her from coming forward and hurting Trump’s campaign, one could (although it is a bit of a stretch) regard this money as a campaign contribution to Trump, rather than simply a private matter seeking to preserve his private reputation.

But what if the money, as Trump’s lawyer now claims, was paid by the lawyer himself? That might remove the problem of a business entity contribution to a political campaign, but our convoluted campaign laws also bar contributions of individuals to particular candidates that exceed $2,700, and the payoff to Daniels far exceeds that. It turns out, however, that if Trump personally covered the $130,000 payment, there ought to be no problem, because individuals are permitted by law to contribute unlimited amounts to their own campaigns. On the other hand, our campaign finance laws are now so difficult to comply with, that if this $130,000 came from Trump and was not adequately reported as self-financing of his campaign there might be a technical legal violation there.

The New Last Refuge
We can probably expect that soon (if it has not happened already), this Stormy Daniels matter will result not only in calls for impeachment but for a new special counsel to be appointed to investigate the president and his associates for campaign violations.

If, however, Sunstein and Schlesinger were correct, this all ought to be a matter between the president and the first lady, and not something for the political process.

What all of this really demonstrates is that Trump’s defeat of Hillary Clinton his efforts to overturn the results of the last administration, and his undeniable success at fulfilling his campaign promises to improve the economy, to overturn burdensome federal regulation, to increase job creation, to revise unfavorable trade agreements, and to reduce taxes—all moves that showed the ineptness of the prior administration—have made it impossible for his opponents to win political arguments against him.

Thus it is that Trump’s enemies have resorted to dubious claims of illegality to damage him. These dubious claims, of no more substance, really, than the false claims of campaign collusion with Russians should be dismissed for the distractions and hypocrisy they are.

Formerly it was patriotism that was the last refuge of the scoundrel; now it is our campaign finance laws.

Photo credit: Joe Raedle/Getty Images

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About Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.