By Alana Abramson
February 14, 2018

Campaign finance experts say that a payment to porn star Stormy Daniels arranged by Donald Trump’s personal lawyer could have broken the law, but it’s unlikely that it will lead to any legal consequences.

Trump’s longtime personal attorney, Michael Cohen, conceded Tuesday night that he arranged for the adult film star — whose birth name is Stephanie Clifford — to receive $130,000 just weeks before the 2016 election, but he argued the payment was lawful and was never reimbursed by the Trump Organization or the campaign.

“In a private transaction in 2016, I used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford,” Cohen said in a statement, which was first reported by the New York Times. “Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly. The payment to Ms. Clifford was lawful, and was not a campaign contribution or a campaign expenditure by anyone.”

Before the payment, Daniels told reporters from In Touch magazine and Slate that she’d had an affair with Trump in 2006, but she did not go public before the election. Cohen has maintained that Trump did not have an affair with Daniels but that he paid her anyway.

Experts say that the payment could still be considered a violation because there is a strong argument that it was an unreported “in-kind contribution” — money that directly benefits the campaign even if it does not go into its coffers, in the same way that a building owner allowing free use of a meeting space would have to be reported.

If the FEC deemed the payment an in-kind contribution, it would be in violation of campaign finance laws for exceeding the maximum amount of $2,700 and for not being disclosed by the Trump campaign. That’s the argument being made by Common Cause, which filed a complaint after the Wall Street Journal reported on the payment calling for the FEC and the Department of Justice to investigate it.

“If [the payment] was money to keep damaging information out of the news cycle at a pivotal point in the election … we’re well within the realm of possible violations, specifically an excessive in-kind campaign contribution that was not reported and shared then,” said Stephen Spaulding, a strategist at Common Cause and a former attorney with the Federal Election Commission.

Cohen’s statement, which came in response to the Common Cause filing, may have already had an effect, however. Daniels’ manager, Gina Rodriguez, told the Associated Press on Tuesday that Cohen’s acknowledgement of the payment invalidated the non-disclosure agreement, enabling her to tell her story publicly.

Common Cause is not the only group that thinks the payment could have been a violation. Brendan Fischer, the Federal & FEC Reform Program Director at the Campaign Legal Center, had a similar opinion.

“The fact that this came one month before the election means there is strong evidence that this was a payment made in connection with the Trump campaign and therefore was an in kind contribution to the Trump campaign and would have exceeded the $2,700 contribution limit and was never reported by the Trump campaign as a contribution,” Fischer told TIME.

The FEC declined to comment. But even if the argument holds up legally, there’s a widespread skepticism among experts on this topic that the agency will actually take any action; In conversations with TIME, Spaulding called the FEC a “notoriously dysfunctional agency.” The commission, which is supposed to have six members, will effectively begin functioning with 4 by the end of this week, after Lee Goodman leaves his post to work in private practice.

That means that, for anything to happen — such as launching an investigation or declaring a violation of a law — all members have to agree. That is unlikely, seeing as the panel will consist of two Democrats, a Republican and an independent.

Fischer noted that the Republican-appointed commissioners have often adopted “very narrow reading of the law” even on “clear violations” in the past.

“There is a chance the FEC will fail to enforce the law in this instance, that they’ll accept an argument from Cohen that this statement had nothing to do with the campaign and it was simply a personal transaction,” he said.

Common Cause has also sent a copy of the complaint to the Department of Justice, which could pursue its own investigation. This is what happened with former Presidential candidate John Edwards, when the government argued that payments to cover up the candidate’s affair with Rielle Hunter violated campaign finance laws. The Department of Justice has not replied to a request for comment.

Although Edwards was indicted in 2011, the jury was ultimately unable to reach a decision, and the Department of Justice declined to retry the case — a precedent that does not bode well for those bringing the complaint against Cohen.

“It would mean going after one of the presidents closest advisers,” said Rick Hasen, an expert in election law, of the Justice Department deciding to take up the complaint. He also noted that if the agency did anything, Attorney General Jeff Sessions would probably have to recuse himself, which only adds another layer of complexity.

“Aside from the fact it might be hard for DOJ to get a conviction based on something like this, it’s politically radioactive,” he said.

Write to Alana Abramson at Alana.Abramson@time.com.

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