Attorney Alan Dershowitz: Paying Hush Money to Women Before Election Not a Crime

Melanie Arter | December 14, 2018 | 11:41am EST
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Attorney Alan Dershowitz (Screenshot)

( – Attorney Alan Dershowitz said Friday that President Donald Trump paying hush money to two women to cover up an alleged affair just weeks prior to the 2016 presidential election was not illegal.

In an interview with Fox News’ “America’s Newsroom,” Dershowitz, author of the book, “The Case Against Impeaching Trump,” said Trump’s former attorney Michael Cohen “doesn’t seem to understand” the difference “between something that may be wrong and something that may be illegal.”

“Reasonable people can disagree about whether it’s wrong to pay hush money to somebody to stop them from … disclosing alleged impropriety sexually. Reasonable people could say that’s wrong or that’s right. It’s not illegal,” he said.

“A presidential candidate under the law could spend a billion dollars of his own money to do anything in the campaign. For example, if a presidential candidate took cash – literally cash - and went and paid one of these women and said, ‘I’m paying you not to disclose what happened, and I’m doing it in order to help myself be elected president,’ that would not be a crime,” Dershowitz said.

“A president’s entitled to make campaign contributions to his own campaign, and the only issue is whether if he did it at all, he did it properly and to the extent he authorized, that he authorized Cohen to make the payments, that makes them payments by the president, which makes them legal. And so, whether you think it’s wrong or right, I don’t understand the case for how it’s illegal,” he said.


Dershowitz said that according to the “very, very complicated campaign laws,” a political candidate can contribute as much as they want to a campaign.”

For example, he said, if former New York City Mayor Michael Bloomberg runs for president, he can donate a billion dollars of his own money to his campaign, “and he can do it for any reason whatsoever, so I don’t understand the case for making that criminal.”

“And what I worry about is when you criminalize political sins, and you eliminate the line between wrong and crime, you’re really endangering the rule of law,” Dershowitz said.

Fox News’ Bill Hemmer asked whether it matters whether Cohen told Trump that the payment was a violation of the law.


“If he told him that it was in violation of the law, he would have been wrong, because it isn’t in violation of the law, but if he had told him that, believe me, he would have said it in his allocution," Dershowitz said.

“He would have told that to the special counsel, and he would have told it to ABC today, so I think we can be pretty sure he didn’t have that discussion with the president, but even if he had had that discussion, getting bad or wrong legal advice from your lawyer doesn’t make a non-criminal act into a criminal act.

“You might have the mens rea at that point, but you don’t have the actus rea, so you haven’t committed an actual crime if you’re the candidate who pays money to your own campaign or to women who endanger your campaign, and what I’d like to do is issue a challenge to the special counsel or anybody who defends the special counsel show me the beef. Show me the criminal statute that that would violate if it in fact happened.

“There’s no real evidence other than Cohen’s word that it happened, but if it happened, where’s the statute? How is it illegal?” 


“There’s a deadline this afternoon. This judge in Virginia wants to see some of these documents on behalf of the special counsel for what they did or did not do with [former national security adviser] General [Michael] Flynn at the White House. This goes back to January 2017,” Hemmer said, referring to an interview that former FBI Director James Comey gave earlier this week.

“What he was talking about was the decision to send FBI officers to the West Wing and talk to General Flynn. The case is being made that Flynn was entrapped with that interview. Based on what you know about it, is that possible? Is that a fair defense? What comes of that?” Hemmer asked.

Dershowitz said the what the FBI did in Flynn’s case was “improper.”

“First, on the day that Flynn was charged, I said he was not guilty, that he should plead not guilty. He’d win this case. I said that way, way back then, and here you have Comey basically saying we’re sending these guys in to give him an opportunity to commit perjury. We’re gonna tell him this is a relaxed conversation. You don’t need a lawyer here, and they knew the facts, so it was an utterly improper use of FBI agents,” he said.

“If it had been in front of the grand jury, it would improper too. Grand jury and FBI agents are supposed to have interviews to find out things they don’t know. They’re not supposed to have interviews in order to ask somebody about something they know the answer to in order to try to spring a perjury trap on them. This is the classic perjury trap, and it’s a trap that I think all Americans who care about civil liberties and who care about controlling prosecutors ought to be deeply, deeply concerned about,” Dershowitz said.

“This is the most unfair use of the FBI, of prosecutorial tactics. Remember one of the FBI agents who went to the meeting was Strzok, who was committed to bringing down Trump. This is impropriety, and I hope the judge sees it that way. Judge Ellis already has made comments about the special prosecutor’s misuse of targeting people in order to squeeze them to get them not only to sing, but possibly to compose.”


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