When they don’t involve adult film actresses, presidential sex scandals and six-figure payments in the days before an election, in-kind political contributions rarely make headlines.

In fact, in-kind contributions, which the Federal Election Commission (FEC) defines as “gifts of goods or services,” are more commonly associated with event catering, website design and travel expenses.

Less than two weeks before the 2016 election, President Trump’s longtime personal lawyer, Michael Cohen, paid Stormy Daniels $130,000 in what some watchdog groups and campaign finance experts have deemed was a political gift to the Trump campaign aimed at covering up an alleged affair Daniels and the candidate had in 2006.

Adav Noti, who spent 10 years working for the FEC, is now senior director of the nonprofit Campaign Legal Center. He said the payment, which kept potentially damaging information about Trump from the public, amounted to an in-kind contribution.

“It was a payment made to influence the election,” Noti said.

The FEC regulates in-kind donations the same way as monetary contributions, and they can violate campaign finance laws in a number of ways.

“It becomes an issue when they either exceed the limits on contributions that can be made to candidates or political parties or PACs, or when they are not properly disclosed,” he said. “The Michael Cohen situation involved both.”

The FEC limits individual contributions to a candidate to $2,700 and requires donations above $200 to be itemized. The $130,000 payment, which Cohen maintains came out of his own pocket, both dwarves the candidate contribution limit and was never disclosed to the FEC.

“A payment made to influence an election is, by definition, either an expenditure or a contribution or both,” Noti said.

Any coordination with the candidate could compound the violation.

“If he coordinated the spending with either the candidate or the candidate’s committee — and as a lawyer, he almost certainly did that and had an ethical obligation to before he signed off on the settlement — then it is an in-kind contribution that was subject not only to reporting but to contribution limits,” Noti said.

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Cohen has been adamant that he was not reimbursed by the Trump Organization or the Trump campaign.

If Cohen was reimbursed by Trump, the payoff would have qualified as a campaign expense paid by Trump himself. Candidates are allowed to spend without limit on their own campaign, but legally, the transaction would still need to be disclosed. Trump spent $66 million on his campaign.

The timing of the payment could be an incriminating factor. It came in the run-up to Election Day, when Trump’s treatment of women was under intense scrutiny following the release of the Access Hollywood tape and allegations by multiple women of sexual misconduct.

“If this had been made three years earlier, I don’t think we’d be having this same conversation,” Noti said. “But it was made 11 or 12 days before the election to ensure that a damaging piece of information was not available to voters when they went to vote.”

A parallel can be drawn to former North Carolina senator John Edwards, a one-time Democratic presidential hopeful who was indicted for allegedly soliciting almost $1 million to help cover up an affair on the campaign trail while his wife was battling breast cancer.

Edwards was acquitted of one count of corruption, and the jury deadlocked on five other charges.

Whereas Daniels was paid 11 days before the election, the contributions in the Edwards case came a year ahead of the election, which made it difficult for prosecutors to prove they were made with political intent.

There is no guarantee that Cohen’s payment will be investigated by the FEC, and even if it is, the process could be time-consuming. The FEC is not known for strict enforcement, and partisan gridlock often complicates such issues.

“It’s true that, generally speaking, the FEC just doesn’t enforce — period,” Noti said. “But there are a lot of unusual aspects to this case, and it’s hard to say with any level of certainty that the FEC won’t act at some point. I could see the FEC opening an investigation.”

Because the FEC is a civil law enforcement agency, it can only levy fines against violators.

However, Common Cause, the nonprofit watchdog organization that filed the original complaint about the payment with the FEC, also filed a complaint with the Department of Justice.



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