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That question is at the center of an ongoing controversy over $130,000 in hush money Cohen paid to porn star Stormy Daniels in return for her silence about an alleged affair just a month before then-candidate Trump was elected 45th president.
At issue is whether the payment represented a personal expense or an unreported loan to Trump’s campaign – which could run afoul of federal election law.
The question was once again brought into sharp focus Wednesday by the release of Trump’s annual financial filing with the Office of Government Ethics, which requires top officials to disclose their assets, income and liabilities.
At issue is whether the payment to Daniels was a personal legal expense or a loan from Cohen that would benefit the Trump campaign in the final weeks of the race against Democrat Hillary Clinton.
Following initial denials from Trump that he knew of the payment, the president’s recently hired attorney, former New York City Mayor Rudy Giuliani, told Fox News host Sean Hannity earlier this month that Trump had reimbursed Cohen and that the payment was “perfectly legal” and did not violate campaign finance law.
“It’s not campaign money. No campaign finance violation. They funneled through a law firm and the president repaid it,” Giuliani said.
In a separate interview the next day on the Fox News program “Fox & Friends,” Giuliani insisted the hush money was paid “for personal reasons.”
“The president had been hurt personally, not politically, personally so much — and the first lady — by some of the false allegations,” he said. “That one more false allegation 6 years old, I think [Cohen] was trying to help the family.”
But later in the same interview, Giuliani conceded that the payment clearly had a political component.
“Imagine if that came out of Oct. 15, 2016, in the middle of the last debate with Hillary Clinton?” he said. “Cohen made it go away. He did his job.”
Trump’s annual financial filing, released Wednesday, includes conflicting characterizations of the Cohen payments.
The disclosure of the payments to Cohen appears in two footnotes. The first, on the cover page, notes that “information related to the payment by Mr. Cohen is required to be reported” and that the “information provided meets the disclosure require for a ‘reportable liability.'” That footnote is initialed by the acting director of the Office of Government Ethics, David Apol, who certified the disclosure on May 16.
But Section 8 of the filing, which lists all liabilities, does not include the Cohen payment along with the rest of Trump’s debts. Instead, a second footnote on that page seems to contradict the first footnote by insisting that the payment “is not required to be disclosed” as a “reportable liability.” Instead, the payment is described as an “expense” that was incurred by Cohen and “fully reimbursed” by Trump.
In a separate letter to Deputy Attorney General Rod Rosenstein, Apol wrote that his office “has concluded that, based on the information provided as a note to part 8, the payment made by Mr. Cohen is required to be reported as a liability.”
The distinction could have important legal ramifications if the payment is determined to be an unreported loan that benefited Trump’s campaign, which could land both Cohen and Trump in legal hot water.
That, at least, was the interpretation of Walter Shaub, former head of the Office of Goverrnment Ethics, who tweeted Wednesday that Apol’s letter “was tantamount to a criminal referral.”
“OGE has effectively reported the president to DOJ for potentially committing a crime,” Shaub tweeted. “Dave Apol comes through in the end!!”