Did you catch what Rudy Giuliani said about Donald Trump in that legally dicey Fox News interview?
No, not that Fox News interview. The second, possibly more incriminating one with Fox & Friends the morning after.
If Wednesday was bad, legal experts and campaign-finance watchdogs warn that Thursday’s televised appearance was even more legally damning, strengthening the case that President Trump broke campaign finance laws.
It may also add to his potential criminal exposure for money laundering, inaccurate financial disclosures and making false statements to the government — all stemming from a $130,000 payment to silence porn actress Stormy Daniels about her alleged sexual affair with Trump.
Trump seemed displeased by Giuliani’s chatter on cable TV, telling reporters Friday that the new addition to his legal team is “a great guy” who is still “learning the subject matter.” Throwing his hands up, he added that Giuliani will eventually “get his facts straight.” NBC News later reported that Giuliani plans to issue a “correction” to his statements.
The payment to Daniels, whose real name is Stephanie Clifford, was made via a private limited liability company created by Cohen.
Giuliani’s latest troubles started with a disclosure on Wednesday that seemed to surprise Fox News host Sean Hannity.
“They funnelled through a law firm. Then the president repaid it,” Giuliani said.
In the two interviews, experts say, Giuliani’s televised remarks managed to imperil Trump on federal ethics violations and may have also resolved a question that would give legal basis to nail the president’s campaign for breaking campaign finance laws.
The key question: Was the Daniels payment a personal expenditure, or was it campaign-related and thus illegal?
To Trump’s legal team, it was probably best left ambiguous. The president risks breaking campaign finance laws on excessive outside contributions if the $130,000 Daniels payment can be determined to be campaign-related.
Fortunately for Giuliani, there was no proof the hush money to suppress Trump’s alleged affair with Daniels was linked to his campaign. That is, until Thursday — when Giuliani seemed to give it all away on Fox & Friends.
“Imagine if that came out on Oct. 15, 2016, in the middle of the last debate with Hillary Clinton,” Giuliani told the hosts. “Cohen made it go away. He did his job.”
The reference to the debates sounded a lot like the missing piece that legal experts on campaign finance rules were seeking to incriminate Trump, said former federal prosecutor Patrick Cotter.
“He unfortunately added that Cohen was ‘doing his job’ — and what was his job? To keep these things from screwing up the election, it seems,” Cotter said.
It would blow up Giuliani’s argument on Wednesday that Trump paying back the $130,000 renders the whole arrangement “perfectly legal” as there no limits on what a candidate can spend on his or her own race. (Trump tweeted that he reimbursed Cohen by putting him on a “retainer” for his services.)
“It’s not campaign money. No campaign finance violation,” Giuliani insisted to Hannity.
But to legal scholars, that seems like an illegal, excessive “in-kind” contribution that could amount to a violation of Campaign Finance Laws, coming just days before the 2016 presidential election.
The Campaign Legal Center’s president Victor Potter isn’t buying Giuliani’s defence. Potter said in a statement that the admission Trump repaid Cohen “destroys” the argument that Cohen was merely making “an independent expenditure” rather than a campaign contribution.
That’s an admission, he said, “that the confidentiality agreement and the timing of the payment influenced the 2016 elections.”
Trump’s campaign has violated campaign laws either way “by failing to report Trump’s subsequent repayments to Cohen,” Potter wrote.
And then there’s the problem of Giuliani and Trump admitting that the president lied.
The admission that Trump knew about — and repaid — Cohen the $130,000 was a direct contradiction of the president’s remarks to reporters. But documents and electronic devices seized from FBI raids of Cohen’s property, as well as the investigations that led to that raid, may have revealed Trump knew about the payments anyway, despite his previous denials.
Cotter said this may have been a new strategy to get ahead of an eventual revelation and put the White House’s “best spin” on Trump coming clean about the payment.
“It made sense to me that they’re pursuing a strategy,” Cotter said. “Like, oh, Cohen is a lawyer, we paid him on a retainer, it was all very natural.
“But it seems to me it became problematical when Giuliani followed up” in the second Fox News interview.
Giuliani’s disclosures on Fox News also raise questions about the theory of money laundering “to hide the fact there was a federal election violation happening,” Cotter said.
Jan Baran, a Republican campaign finance legal expert, noted that Giuliani’s use of the word “funnelled” to describe channeling money to Daniels, while not a legal term, conjures up connotations “of something underhanded.”
He questioned why Giuliani didn’t use another euphemism less suggestive of laundering.
“Like saying, ‘We relied on other representatives to make sure the payment was effectuated,'” he said.
Either way, Baran doesn’t believe Giuliani ran afoul of campaign finance laws.
He argues that despite Giuliani’s remarks that Cohen “did his job” by paying off Daniels and avoiding election embarrassment, it remains difficult to prove the money was related to campaign spending, as opposed to being an expenditure “that just happened while the guy happened to be a candidate.”
The timing, in other words — a week and a half before the election — could be coincidental.
For the same reason, Baran dismisses assertions Trump broke campaign finance laws by not reporting the $130,000.
“You don’t have to report your alimony payments, do you? Or your mortgage payments? It has to be subject to campaign laws. And if it’s not subject to the laws, it doesn’t have to be reported.”
But even separated from all campaign finance law issues, Jordan Libowitz with Citizens for Responsibility and Ethics in Washington (CREW), a nonpartisan watchdog, said repaying the money over the course of a few months doesn’t clear Trump. If anything, it raises ethics problems.
“That sounds like a loan to us. Cohen fronted the money, Trump then paid him back … it’s not that different than any other kind of loan.”
What makes that troubling, Libowitz said, is that Trump never disclosed the liability on his public financial disclosures, “which he signed and attested to be true.”
There can be criminal penalties for false statements, and CREW has submitted complaints through the Department of Justice and the Office of Government Ethics to look into whether the Cohen payments to Daniels constituted an undisclosed loan.
“There was reason to suspect it before, but it seems very clear now after Giuliani’s statements” on Fox News, Libowitz said.
In a statement, CREW’s executive director said: “It’s not often that the president’s lawyer goes on television and appears to confirm one of our complaints.”
With Giuliani coming clean about Trump changing his story on the payoff, the conflicting statements raise another problem. Daniels’s lawyer, Michael Avenatti, sounded delighted on MSNBC, saying the about-face from Trump helps advance his client’s mission to force Trump to submit to a deposition and clear up a very tangled story.
“The likelihood of us ultimately having a chance to depose the president went up exponentially,” Avenatti said. “And there’s a much greater likelihood of that now, because of the ever-changing stories and because of some of the admissions that have been made.”
Mr. Cohen, an attorney, received a monthly retainer, not from the campaign and having nothing to do with the campaign, from which he entered into, through reimbursement, a private contract between two parties, known as a non-disclosure agreement, or NDA. These agreements are…..