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 statuteof-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). 

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MURs 7313, 7319, and 7379 (Michael Cohen) 

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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-CourtProceedingTranscript.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 

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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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