Remember, he’s down to two defenses on the Stormy Daniels and Karen McDougal payoffs. He used to argue that he had nothing to do with either transaction, but between Michael Cohen’s testimony, David Pecker’s probable testimony, and Allen Weisselberg’s possible testimony, it should be easy enough for the feds to discredit that claim.
With that out the window, POTUS can argue one of two ways. One: The payments weren’t crimes. It’s only a crime if you fail to report a campaign contribution, and a hush-money payoff is only a campaign contribution if it was made solely for the purpose of influencing an election. If there’s any personal purpose, like sparing yourself and your family public embarrassment, then it’s not a contribution and can be kept secret. That’s Rudy Giuliani’s argument, and there are smart conservative lawyers who agree with it. But there are also smart conservative lawyers who don’t, and the fact remains that no court has endorsed the Trump/Rudy view. In the John Edwards case, a federal judge refused to dismiss the charges on grounds that the payoff to Edwards’s mistress was partly for personal reasons and therefore shouldn’t legally qualify as a campaign contribution. That’s for the jury to decide, said the court. Trump’s out on a limb if he thinks another judge will rule differently, especially now that Cohen’s headed to federal prison for having allegedly violated this law.
Two: Even if the payoffs were a campaign contribution, Trump didn’t know that failing to report them was a crime. He hasn’t broken the law here unless he did so willingly, knowing that he was breaking it. He relied on Cohen to know the statutes. He’s but a simple businessman, unacquainted with America’s campaign-finance regulatory thicket. The feds can’t prove that he had the mens rea needed to convict.
In 2000, the Federal Election Commission investigated allegations that Trump Hotels & Casinos violated the law related to a fundraising event for a Senate candidate. Mr. Trump’s sworn affidavit “indicates that Trump had a very thorough understanding of federal campaign finance law, especially regarding what he could and could not legally do when raising money for a federal candidate,” said Brett Kappel, an election-law lawyer at Akerman LLP.
In the four-page affidavit that Mr. Trump signed, he stressed he had a particular familiarity with laws governing corporate contributions to candidates. Mr. Trump said he was acting in his “individual,” not corporate, capacity when he hosted the event; that he had paid for the reception costs “from my personal funds”; that he “took no action, of any nature, kind or description, to compel or pressure” any employee to donate to the campaign ahead of the event; and that he wasn’t reimbursed for any of the costs.
One of his former lawyers noted that the rules governing the sort of payment made in the McDougal matter are different from the rules governing other sorts of payments that Trump claimed to know so well in his 2000 affidavit, but the fact remains that prosecutors could offer the affidavit as evidence that he broke the law knowingly in paying off his mistress. That’s the missing element of the offense that they need to convict him.
Potential Trump jurors might see this clip played in court for them too. It’s from 1999, retrieved from the CNN archives by Don Lemon and aired last night:
What would a jury do with that? On the one hand, the guy’s a legendary blowhard and braggart, apt to lie plain-faced about his depth of knowledge to try to puff himself up. Maybe they’d ignore it on grounds that it’s just Trump being Trump, not worth taking seriously. On the other hand, if the defendant’s on tape crowing that he’s well educated about a subject which the law requires some knowledge of in order to convict him of the charges, why not take him at his word? He might be telling the truth, after all. He donated to many politicians before becoming one himself. And we know that he followed the Edwards case as it played out six years ago.
Exit question: Remember back in May when Rudy all but admitted that one purpose of the Stormy Daniels payoff was to influence the election? Unless a court rules that any payoff with a partly personal purpose is disqualified from being a campaign contribution, Trump’s stuck.