The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This isn't the biggest story in the world, but I was interested in the statement by Trump's personal lawyer, Michael D. Cohen, about the payments made to adult film actress Stormy Daniels. A month ago, the Wall Street Journal broke the story that began:
A lawyer for President Donald Trump arranged a $130,000 payment to a former adult-film star a month before the 2016 election as part of an agreement that precluded her from publicly discussing an alleged sexual encounter with Mr. Trump, according to people familiar with the matter.
Yesterday Cohen made this statement admitting the bulk of the story. "In a private transaction in 2016," Cohen said, "I used my own personal funds to facilitate a payment of $130,000 to [Daniels]. Neither the Trump Organization nor the Trump campaign was a party to the transaction with [Daniels], and neither reimbursed me for the payment, either directly or indirectly."
The press is widely reporting, apparently based on this statement, that Cohen said he paid the $130,000 to Daniels out of his own pocket. The phrase "out of his own pocket" seems to be used by pretty much every story. "Trump's Longtime Lawyer Says He Paid Stormy Daniels Out of His Own Pocket," the New York Times headline says. And the Fox News headline is similar: "Michael Cohen, Trump's lawyer, says he paid Stormy Daniels $130,000 out of own pocket."
Now, clearly the most important part of the story is verification from the President's own personal lawyer that, in 2016, he was himself involved in paying $130,000 to a porn star who had claimed to have had an affair with the President. I'm old enough to remember when something like that would have been a major Presidential scandal. That seems like a long time ago.
But, with my apologies, let me focus on one really small part of the story: Does Cohen actually say he paid the $130,000 out of his own pocket? If Cohen's statement above is the only statement he has made, which as far as I can tell is the case, he never actually says that. All Cohen says is that he used his personal funds to "facilitate a payment of $130,000."
To "facilitate", the dictionary tells us, means to assist with or to make something easier. Given that, I would think that the most literal reading of Cohen's statement is just that he used his own funds to arrange the payment. He's not making any statement about whose $130,000 was paid. For example, if it took Cohen a few hundred dollars to set up an entity to pay Daniels, and to wire someone else's $130,000 to her, then he would have been using his own personal funds to faciltate that payment. Sending on the money would be a transaction between two parties, Daniels and the entity Cohen set up, and there would have been no need to reimburse Cohen $130,000 because it wasn't Cohen's money that was sent.
Of course, there are other ways to read Cohen's statement. There are enough ambiguities in it to drive a truck through. Maybe Trump just wrote a personal check to Cohen. Cohen was reimbursed, but not from Trump's "organization" or "campaign." At this point, we don't know. And of course we also don't know if what Cohen is now saying is literally true. Cohen's "reputation for having a character for truthfulness," to use an evidence law phrase, is lousy. But I just thought it worth pointing out that Cohen doesn't even claim that he paid the $130,000 out of his own pocket, which is what the press seems to be reporting.