A bland footnote at the bottom of page 45 of President Trump’s annual financial disclosure released Wednesday finally resolves a pressing political question. Yes, Trump repaid between $100,000 and $250,000 in expenses incurred by his personal attorney Michael Cohen. Those expenses, it seems, were the payment made to porn star Stormy Daniels in the final days of the 2016 campaign. Cohen has admitted paying Daniels $130,000, money that Trump’s newly hired attorney, Rudolph W. Giuliani, admitted last month had been repaid.
There’s just one problem. If the loan to Trump that was repaid last year was incurred in 2016, one would think that it would have appeared on Trump’s disclosure report last year. It didn’t.
The acting director of the Office of Government Ethics, a Trump appointee, wrote a letter to Deputy Attorney General Rod J. Rosenstein that touches on that discrepancy. David Apol notes that he certified Trump’s most recent filing and that the note on page 45, appended to Part 8 of the form, meets the OGE’s disclosure requirements. But Apol also sent Rosenstein both the 2017 and 2018 reports “because you may find the disclosure relevant to any inquiry you may be pursuing regarding the President’s prior report that was signed on June 14, 2017.”
In other words, if you’re investigating whether Trump’s 2017 filing was accurate, here’s some evidence to help you make up your mind.
What Trump might argue is that he learned of the loan from Cohen only after he submitted his report on June 14 of last year. In that event, he couldn’t have included it on his report. Including the repayment of the loan in his most recent filing was, he might argue, the first point at which he could do so.
Unfortunately, that doesn’t absolve him of wrongdoing.
First of all, it’s unlikely that he learned of the loan from Cohen only after June of last year. After all, the Wall Street Journal reported in March that Cohen began complaining to friends about having not been repaid shortly after the campaign. If that’s true, it seems unlikely that Cohen would have complained about not being repaid if he understood that Trump didn’t know any loan had been made.
Second of all, Giuliani argued that Cohen was repaid as part of his monthly $35,000 retainer that he earned over the course of 2017. The details here are very murky, given the varying claims Giuliani made about how the repayment occurred and when Trump learned about it. (At one point, Giuliani told NBC that Trump was informed about the repayment only after his legal team told him about it.) The idea, it seems, would be that Trump paid it all back in the retainer payments after June 14, 2017. (The new filing says that all of the repayment occurred last year.)
Even then, though, Trump isn’t in the clear. Lawrence Noble, senior director and general counsel at the Campaign Legal Center, noted in an email to The Washington Post that Trump should have amended his 2017 filing once he knew about the money owed to Cohen given that the loan still existed in 2017, whether Trump knew about it or not. (The letter from Apol says that “the payment made by Mr. Cohen is required to be reported as a liability” — but doesn’t say when it would have needed to be reported.)
“Let’s say your broker bought stock that he never told you about, and you didn’t know about it when you filed your report,” Noble said, by way of explaining the legal requirements. “Then the broker calls you and tells you, ‘Oh, I bought AT&T stock.’ You’d have to go back and amend your report.” The same thing holds for the repayment of this loan.
Giuliani also claimed that the repayment to Cohen was for the Daniels agreement and “a few other situations that might have been considered campaign expenses.” Our Aaron Blake points out that at times Giuliani described the full repayment to Cohen as topping $460,000 — but the new report gives only a range of $100,000 to $250,000.
Then there’s the campaign finance question.
“If it was a loan and was for the purpose of the campaign, it was an illegal contribution from Cohen to the campaign,” Noble said. “An advance or loan is a contribution, subject to the limits ($2,700) and reportable by the campaign.”
Considering only the disclosures, though, the needle that Trump’s team is trying to thread is a tiny one. Trump was unaware of the existence of the loan to Cohen until some point after June 14, 2017, and the repayments to Cohen all occurred after that date. That his prior report was unamended, though, remains a problem.
The new filing, in fact, doesn’t do a whole lot to answer the outstanding questions.
“I think there’s a lot more to be found out about this,” Noble said, understating the situation somewhat.