May 7, 2018

There’s a Gaping Hole in Giuliani and Trump’s Legal Argument


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And you can bet the feds see it.


By Andrew Cohen, J.D. / 05.03.2018
Fellow
Brennan Center for Justice


Rudy Giuliani hurt President Trump and his lawyer/fixer Michael Cohen Wednesday night if he told America something about those Stormy Daniels hush-money payments that federal prosecutors didn’t already know. But of course they knew. Even before Giuliani’s disastrous Hannity interview, I believe Mueller and his larger team could have proven that the president and Cohen were lying about the $130,000, and I think that’s why Giuliani said what he said on behalf of his new client. We all should applaud this rare exhibit of candor from this crew. And we shouldn’t expect it to last.

But the revelations, themselves, are not the story here – it’s the rationale behind them. The problem for Trump, Cohen and Giuliani isn’t that the former mayor and prosecutor contradicted the public statements the president and Cohen have made. (Those contradictions were bound to be exposed anyway.) The biggest long-term problem for Trump is that the gang at the White House evidently is hewing to flawed legal analysis about how this “truth” fits into campaign finance, money laundering and fraud law. Giuliani thinks his comments to Sean Hannity absolve or exculpate Trump. Clearly other bright bulbs at the White House do as well.

But what if Rudy and company are wrong? What if their assessment of federal campaign finance law and how it fits into the facts here are overly optimistic or naive? This new “truth” offensive is based on the premise that there is a lawful explanation for what happened. But who do you think is more likely to have the best understanding of legal precedent that applies here: the experts who have lived their lives immersed in campaign finance law, the folks who know this niche inside and out, or Rudy Giuliani and the president’s revolving council of legal advisers? (And, yes, I include in this list Don McGahn, who does have experience with campaign finance laws.) If Trump’s lawyers are wrong about the law – and I think it’s likely they are – Rudy has just given the special counsel a gift.

Actually, two gifts. Regardless of how the federal courts ultimately rule on the campaign finance issues at play here, the special counsel now knows precisely what defense he’ll face if he charges Cohen with any crimes, or alleges any criminal conduct on this score by the president. Giuliani told Hannity, and later Robert Costa of the Washington Postthat Trump’s payments to Cohen were innocent retainer funds designed to reimburse the lawyer for a “nuisance” settlement payment made to Daniels (whose real name is Stephanie Clifford).

These were “personal” payments, Giuliani says, and thus not the sorts of campaign contributions or reimbursements that violate federal law. “This is chasing windmills,” Giuliani told Costa. “I also think, personally, neither one of them saw it as a campaign thing, they thought of it as a personal thing.” Trump then doubled-down on this simplistic theory early Thursday in a series of remarkable Tweets that surely were written by someone other than the president. Sure, in some circumstances, the payment of “hush money” isn’t illegal. But those circumstances are not present here.

You don’t need to have a law degree, or be a talking head on television even, to know that this explanation isn’t likely to make a difference to the federal judge or jury that ultimately gets to decide how this all ends. And you also don’t need to be an expert to understand how the feds benefit from knowing, today, how the president is going to try to spin this if and when it gets to court. I bet every lawyer in America would love to know in advance of an indictment how the defense intends to fight the charges. And that’s what Giuliani has just done – he’s allowed the prosecutors to prepare to get around the defense. Heckuva job, Rudy.

It’s a big gamble, don’t you think? Going on national television and then doubling-down in the Post and on Twitter with a legal theory that most campaign-finance experts believe won’t likely wash. It says something not just about how weak the president’s legal position is, but also how strong he feels, politically speaking, with the Congressional Republicans who may ultimately determine his fate. One thing to watch for the rest of the week? How all of this plays on Capitol Hill, and especially with those federal lawmakers whose ardent support for Trump bucks up against their ardent need for money from “family values” donors who might finally be at their wits end.

My best guess is that this happened this way and at this time because the White House finally conceded that it’s the best legal argument the president and Cohen have. And if that is true, then watch out now for how Cohen reacts as he gets squeezed by federal prosecutors. Imagine being Cohen last night and this morning as Giuliani cuts the legs out from under you. Imagine how you’d feel if all this went down without your knowledge. That’s the one question I want to know today, the morning after: Did Cohen’s most famous client at least give his most trusted lawyer the courtesy of a phone call saying, in effect, we’re about to make your already miserable life measurably worse?


Originally published by the Brennan Center for Justice under a Creative Commons Attribution-No Derivs-NonCommercial license.

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