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    The document summarizes the Federal Election Commission's decision to dismiss complaints regarding a $130,000 payment made by Michael Cohen to Stephanie Clifford shortly before the 2016 presidential election. The complaints alleged the payment violated campaign finance law. However, Cohen had since pleaded guilty to campaign finance violations regarding the payment. Given Cohen had already been prosecuted for the conduct at issue, and the FEC faced a large backlog of matters due to lack of quorum, the commissioners voted to dismiss the matters as an exercise of prosecutorial discretion.

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    The document summarizes the Federal Election Commission's decision to dismiss complaints regarding a $130,000 payment made by Michael Cohen to Stephanie Clifford shortly before the 2016 presidential election. The complaints alleged the payment violated campaign finance law. However, Cohen had since pleaded guilty to campaign finance violations regarding the payment. Given Cohen had already been prosecuted for the conduct at issue, and the FEC faced a large backlog of matters due to lack of quorum, the commissioners voted to dismiss the matters as an exercise of prosecutorial discretion.

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    © All Rights Reserved
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    107K views3 pages

    Before The Federal Election Commission

    Uploaded by

    Washington Examiner
    The document summarizes the Federal Election Commission's decision to dismiss complaints regarding a $130,000 payment made by Michael Cohen to Stephanie Clifford shortly before the 2016 presidential election. The complaints alleged the payment violated campaign finance law. However, Cohen had since pleaded guilty to campaign finance violations regarding the payment. Given Cohen had already been prosecuted for the conduct at issue, and the FEC faced a large backlog of matters due to lack of quorum, the commissioners voted to dismiss the matters as an exercise of prosecutorial discretion.

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    of 3

    MUR731300163

    FEDERAL ELECTION COMMISSION


    WASHINGTON, D.C. 20463

    BEFORE THE FEDERAL ELECTION COMMISSION

    In the Matter of )
    )
    Michael Cohen, et. al. ) MURs 7313, 7319, and 7379

    STATEMENT OF REASONS OF
    COMMISSIONERS SEAN J. COOKSEY AND JAMES E. “TREY” TRAINOR III

    These matters arose from a payment made to Stephanie Clifford shortly before the 2016
    presidential election as part of a non-disclosure agreement to prevent Clifford from speaking
    publicly about her claim that she and 2016 presidential candidate Donald J. Trump had a
    relationship in 2006. The complaints allege the payment violated the Federal Election Campaign
    Act of 1971, as amended (“the Act”). Between the time that these complaints were filed and
    when these matters came before us at the initial stage of the enforcement process, Michael
    Cohen, Mr. Trump’s lawyer, pleaded guilty to violating federal campaign finance law in
    connection with the payment. Moreover, at the same time, the Federal Election Commission’s
    (“FEC”) loss of a quorum led to an extensive enforcement backlog, including numerous statute-
    of-limitations imperiled matters such as these. As explained in further detail below, based on
    these factors we voted to dismiss these matters as an exercise of prosecutorial discretion.

    The complaints in these matters, filed in 2018 and 2019, cite a series of publicly reported
    facts about the payment made to Ms. Clifford. In short, Michael Cohen established Essential
    Consultants, LLC on October 17, 2016, and later that month, Essential Consultants, LLC made a
    payment in the amount of $130,000 to Ms. Clifford as part of a non-disclosure agreement
    pursuant to which Ms. Clifford would be precluded from publicly discussing her relationship
    with Mr. Trump. Based on these facts, the complainants assert various violations of the Act. 1

    Before the Commission could consider the Office of General Counsel’s (“OGC”)
    recommendations in these matters, Mr. Cohen pleaded guilty to an eight-count criminal

    1
    Specifically, the complaints allege that the payment to Ms. Clifford violated the Act either as an illegal in-kind
    contribution from the Trump Organization, LLC to Mr. Trump’s presidential campaign committee, MUR 7313
    Compl. (Jan. 23, 2018); MUR 7319 Compl. (Feb. 14, 2018); see also MUR 7637 Compl. (Aug. 16, 2019), or that it
    was a conversion of campaign funds to personal use when the Trump campaign committee paid Mr. Cohen’s legal
    fees in connection with the Department of Justice’s ultimately successful prosecution of Mr. Cohen for his role in
    making the payment, MUR 7379 Compl. (May 4, 2018).
    MUR731300164

    MURs 7313, 7319, and 7379 (Michael Cohen)


    Page 2 of 3

    information,2 and in connection thereto admitted, among other things, to making an excessive
    contribution in violation of the Act by making the Clifford payment from his personal funds.3
    The plea hearing transcript includes a step by step review of how U.S. District Judge William
    Pauley verified the plea, confirming that a federal judge was sufficiently satisfied with the
    circumstances surrounding the plea deal and the responses given by Cohen at the hearing,
    including the explanations given by Cohen, count by count, during his allocution. 4 Ultimately
    Mr. Cohen was sentenced to three years in prison and ordered to pay $1.39 million in restitution,
    $500,000 in forfeiture, and $100,000 in fines for two campaign finance violations (including the
    payment at issue in these matters) and other charges. In sum, the public record is complete with
    respect to the conduct at issue in these complaints, and Mr. Cohen has been punished by the
    government of the United States for the conduct at issue in these matters.

    Thus, we concluded that pursuing these matters further was not the best use of agency
    resources.5 The Commission regularly dismisses matters where other government agencies have
    already adequately enforced and vindicated the Commission’s interests.6 Furthermore, by the
    time OGC’s recommendations came before us, the Commission was facing an extensive
    enforcement docket backlog resulting from a prolonged lack of a quorum,7 and these matters

    2
    See Trans. of Proceedings before Hon. William H. Pauley III at 27–28, No. 1:18-cr-00602-WHP, 18-CR602
    (S.D.N.Y. Aug. 21, 2018), https://assets.documentcloud.org/documents/4780185/Cohen-Court-
    ProceedingTranscript.pdf (“Cohen Plea Hearing”) (pleading guilty to eight counts, including one count of making
    excessive contributions in violation of 52 U.S.C. § 30116(a)(1)(A) in relation to Clifford payment); see also
    Information ¶¶ 32–36, United States v. Cohen, No. 1:18-cr-00602-WHP, 18-CRIM-602 (S.D.N.Y. Aug. 21, 2018),
    https://www. justice.gov/usao-sdny/press-release/file/1088966/download.
    3
    During his sworn allocution in federal court, Mr. Cohen acknowledged that he made the $130,000 Clifford
    payment for the “primary purpose of influencing the [2016] election.” Cohen Plea Hearing at 23. Taking that
    admission as true, OGC reasoned that the payment was an excessive contribution because under the Act, a
    “contribution” includes “any gift, subscription, loan, advance, or deposit of money or anything of value made by any
    person for the purpose of influencing any election for Federal office,” 52 U.S.C. § 30101(8)(A), and the applicable
    contribution limit was $2,700 per election, 52 U.S.C. § 30116(a)(1)(A), (f); 11 C.F.R. §§ 110.1(b), 110.9; see Price
    Index Adjustments for Contribution and Expenditure Limitations and Lobbyist Bundling Disclosure Threshold, 80
    Fed. Reg. 5750, 5752 (Feb. 3, 2015).
    4
    Although Mr. Cohen initially denied any wrongdoing in connection with the payment, MUR 7313 Resp. (Cohen)
    (Feb. 8, 2018), there is nothing in the record to contradict or call into question Cohen’s subsequent allocution.
    5
    For the reasons set forth in the First General Counsel’s Report, we concurred with OGC’s recommendations to
    dismiss the allegation that Trump Tower Commercial, LLC, violated the Act by paying Clifford through
    disbursements disguised as rent payments on the Trump Committee’s reports, and to dismiss the allegation that
    Cohen, Trump, and the Trump Committee violated 52 U.S.C. § 30114(b) by converting campaign funds to personal
    use.
    6
    See MUR 7479 (Keeping America in Republican Control PAC), Statement of Reasons of Vice Chair Allen Dickerson
    and Commissioners Sean J. Cooksey and James E. “Trey” Trainor, III (Apr. 30, 2021) at 2, n.9.
    7
    The Commission lost a quorum when Commissioner Petersen resigned on September 1, 2019, then temporarily
    regained a quorum when Commissioner Trainor joined the Commission on June 5, 2020, but lost a quorum upon the
    resignation of Commissioner Hunter on July 3, 2020, and did not regain a quorum again until December 2020, when
    Commissioners Broussard, Cooksey, and Dickerson joined the Commission. See Statement of Commissioner Ellen
    L. Weintraub On the Senate’s Votes to Restore the Federal Election Commission to Full Strength (Dec. 9, 2020),
    available at https://www.fec.gov/resources/cms-content/documents/2020-12-Quorum-Restoration-Statement.pdf (as
    MUR731300165

    MURs 7313, 7319, and 7379 (Michael Cohen)


    Page 3 of 3

    were already statute-of-limitations imperiled. 8 These are precisely the prudential factors cited by
    the U.S. Supreme Court in Heckler v. Chaney, and why we voted to dismiss these matters as an
    exercise of our prosecutorial discretion.9

    ___________________________________ April 26, 2021


    Commissioner Sean J. Cooksey Date

    ___________________________________ April 26. 2021


    Commissioner James E. “Trey” Trainor III Date

    of Dec. 9, 2020, there were 446 matters before the agency, of which 275 were awaiting Commission action, of
    which at least 35 were statute-of-limitations imperiled).
    8

    9
    470 U.S. 821, 831 (1985). See also CREW v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) (“The Supreme Court in
    Akins recognized that the Commission, like other Executive agencies, retains prosecutorial discretion.”).

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