Not for nothing did we call my April 10 column “Trump’s De Mini-Mess.” It was a reference to what seemed a political tempest in a legal teapot: a hush-money payment to a porn star who claims to have had an extramarital sexual encounter with the president a decade before he was elected — shortly after Melania gave birth to Barron in 2006. The lurid details make the matter a political land mine, but legally, it was, comparatively speaking, de minimis: a technical question of whether the payment, made by Trump’s sometime-lawyer and self-proclaimed “fixer,” Michael Cohen, was an “in-kind” campaign contribution under federal election laws.
By contrast, the investigation Special Counsel Robert Mueller is conducting into allegations of collusion with Russia and obstruction of justice is big stuff. It makes sense that the Trump camp has become increasingly combative in confronting it. If you’ve got a good defense, big stuff has to be fought hammer and tongs.
It usually doesn’t make sense to approach small stuff that way, though. That can turn small stuff into big stuff.
Alas, Trump’s way is to punch down and to punch hard, no matter how trivial the challenger or the slight. The president has decided to fight hard against claims of a campaign-finance violation and against Stephanie Clifford, the porn star known as Stormy Daniels. That was made clear Wednesday night, in an appearance on Hannity by Rudy Giuliani (Trump’s old friend and latest new lawyer). It was even clearer the next morning, when Trump took to Twitter.
So now it’s big stuff.
Shortly after Stormy strutted into our little circus, I opined that, on the election-law question, “the best argument in Trump’s favor is one that claims mitigation, not innocence.” First, unlike Bill Clinton’s Lewinsky affair, Stormy’s alleged tryst with Trump occurred long ago and involved no abuse of presidential power or privilege. Second, as campaign-finance violations go, $130,000 is chump change. The 2008 Obama campaign was permitted to settle violations nearly 20 times the size of the Stormy payment by paying a fine to the FEC.
Now, arguing mitigation instead of fighting on the merits means taking a less combative approach. Here, it would probably start with admitting guilt. Of course, no one ever wants to do that. Plus, the rules of the game are that Democrats get away with murder while Republicans get murdered. The Trump camp is understandably worried that, far from the see-no-evil approach the Justice Department took to the Obama campaign’s immense violations, Trump might get the Dinesh D’Souza treatment. D’Souza, an Obama critic, committed a puny $20,000 campaign-finance violation, but Obama’s Justice Department hit him with a multi-count felony indictment and pushed for a prison sentence when he pled guilty (he was not imprisoned but confined for a time in a halfway house).
All that said, there is nothing but ugly for the president in fighting, and thus magnifying, the Stormy story.
The news reports write themselves: hush money before the election, the implausible denials of the conduct, the implausible denials of knowledge about the payment, the specter of cheating on Melania right after the birth of Barron Trump, Stormy’s allegation of an extortionate threat, the laugh-out-loud details of the non-disclosure agreement (Trump as “David Dennison” and Stormy as “Peggy Peterson”), and so on. It thus seemed to me that the best course was to say as little as possible; amend the campaign-finance disclosures; try to settle the civil litigation with Ms. Clifford in California (the story is out now, so what’s the point?); hope the Trump Justice Department, relying on the Obama 2008 precedent, would agree to a modest FEC fine to settle the matter; and try to move on, drawing as little attention as possible to this tawdry tale – understanding, of course, that the media would try to keep it front and center.
Instead, Trump is fighting. The mini-mess is becoming a maxi-mess.
Rudy Giuliani (who hired me as a prosecutor in the Eighties) clearly took Sean Hannity by surprise Wednesday night. He admitted that Trump reimbursed Cohen in installments over a number of months. This blows up both Trump’s story that he did not know about Cohen’s payment to Stormy and Cohen’s story that he did not tell Trump about it.
Yes, those stories were risible on their face, and it was only a matter of time that they’d be exposed — indeed, as some commentators have noted, it is probable that federal prosecutors in Manhattan already knew that Trump had reimbursed Cohen. Rudy was trying to get out in front of bad news that was going to break anyway.
Still, the admission seemed startling, and within minutes the media frenzy was on. That was a strong signal that the upside of Trump’s legal defense on an abstruse regulatory matter would be vastly outweighed by the political damage from spotlighting Trump’s and Cohen’s false statements. Yet, the president upped the ante on Twitter. In a string of posts that were clearly ghost-written by lawyers (here, here, and here), he asserted (my italics):
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 very common among celebrities and people of wealth. In this case it is in full force and effect and will be used in Arbitration for damages against Ms. Clifford (Daniels). The agreement was used to stop the false and extortionist accusations made by her about an affair, despite already having signed a detailed letter admitting that there was no affair. Prior to its violation by Ms. Clifford and her attorney, this was a private agreement. Money from the campaign, or campaign contributions, played no roll in this transaction.
While there are problems (which we’ll come to) with Rudy’s legalistic defense, Trump’s tweets go much further, appearing both to deny the sexual encounter and to threaten Clifford with robust enforcement of the NDA – a heavy-handed arrangement in which, in exchange for the $130K, she faces millions of dollars in penalties each time she spills the beans.
This seems crazy to me. No one believes the “affair” didn’t happen. And, because everyone knows who Trump is, no one much cared about it . . . until now. Now there will be wall-to-wall coverage to prove it happened, including coverage of Trump’s flings and interactions with women over the years (some of which are alleged to involve unwanted advances), until he admits it. If he does, he will look terrible for inducing Stormy to sign a false denial letter and for relying on it. In the meantime, he will look terrible for appearing to threaten Stormy with the punitive NDA damages, which will lend credibility to her thus far uncorroborated claim that, in 2011, an unidentified man threatened that she would be killed if she did not keep quiet. And the cherry on top: Trump’s tweet calls renewed attention to the NDA. While such agreements may be “very common” as Trump says, how “very common” is it to do them under silly pseudonyms instead of the parties’ real names? That question, as night follows day, will lead to more media discussion of the fact that Cohen used the very same pseudonyms in yet another hush-money arrangement with a major GOP donor and Trump supporter.
Since the team obviously decided it was worth risking this political fallout to get their defense on the campaign-finance claim out there, we must ask: How good is the defense?
Turns out Trump’s was not the only Twitter account buzzing Thursday morning. Prominent Washington lawyer George Conway tweeted some guidance from the FEC (my italics):
Personal gifts and loans
If any person, including a relative or friend of the candidate, gives or loans the candidate money “for the purpose of influencing any election for federal office,” the funds are not considered personal funds of the candidate even if they are given to the candidate directly. Instead, the gift or loan is considered a contribution from the donor to the campaign, subject to the per-election limit and reportable by the campaign. This is true even if the candidate uses the funds for personal living expenses while campaigning.
George’s tweets get attention, not just because he’s very smart but because he is a Trump critic who is married to a top Trump White House adviser, Kellyanne Conway. This one, I imagine, will get attention.
See, while the president was on Twitter gamely seeking to distance the Stormy hush money from the Trump campaign, Rudy was on television wrestling with the inconvenient fact that the payment was made on the eve of the election. Politico picks up the story:
During a Thursday morning interview with “Fox & Friends,” Giuliani alluded to the idea that campaign considerations played into the October 2016 payment to Daniels. “Imagine if that came out on October 15th, 2016, in the middle of the, you know, last debate with Hillary Clinton,” Giuliani said. “Cohen didn’t even ask. Cohen made it go away. He did his job.”
No doubt this is true: If Cohen’s job was to protect his client, Trump, it made sense to pay big bucks to suppress a story that could have been ruinous if it broke three weeks before the election. But that just highlights the nexus between the payment and the campaign.
Rudy’s theory does not fix that unfixable problem. He is relying on the fact that, though there are severe restrictions on what all other donors can contribute, there are no limits on a candidate’s own contributions to a campaign. Therefore, the argument goes, even if the Stormy payment were deemed an in-kind contribution, Trump, by reimbursing Cohen, ultimately paid the money himself, so there can’t have been a violation.
The harder you fight against small stuff, the bigger it appears if your story collapses.
That fails to account for two problems. First, even if Trump ultimately paid, Cohen still fronted the money. From the FEC’s perspective, that makes it a “loan . . . for the purpose of influencing [an] election for federal office” and thus “reportable by the campaign.” Second, even if we strip Cohen out of the equation and acknowledge that there were no limits on what Trump could spend on his own campaign, the campaign was still obliged to report Trump’s spending.
That’s a long-winded way of saying: The question is not just whether the payment was within legal contribution limits; there is also the matter of whether the payment was reported to the FEC.
Nor do the reporting questions end there. According to the Washington Examiner, Norman Eisen, an Obama White House ethics lawyer who has also been tweeting, is pushing for an investigation of Trump’s public financial-disclosure report. Eisen points out that government officials are supposed to list loans they’ve received on the form (known as an OGE-278). He thus theorizes that Cohen’s fronting of the $130,000 that Trump eventually reimbursed was a loan subject to reporting, and he’s betting that Trump did not disclose it. I imagine we’ll find out . . . maybe on Hannity.
None of this stuff is the crime of the century. None of it is in the same league as tales of Russian espionage and obstruction of high-profile FBI investigations. But, as legal commentators and Trump critics are quick to point out, it is a felony punishable by five years’ imprisonment to make false statements or material omissions on government disclosure forms. And the harder you fight against small stuff, the bigger it appears if your story collapses.
I already miss the quiet calm of the Mueller investigation.