I’m down to two theories on this. One: Rudy is playing eight-dimensional chess. So brilliantly, in fact, that most of us can’t see the board. Two: Rudy has an undiagnosed head injury.
Jazz is right, I think, that Giuliani admitting last night that Trump reimbursed Cohen for the hush-money payment was strategy, not a mistake. Rudy knows the feds are going to figure out that Trump paid Cohen back now that they have Cohen’s files. Once they do, and that fact leaks, the media will blow up and shout that Trump had been caught by his own DOJ in a lie told on Air Force One a few weeks ago when he said that he knew nothing about the payment. Or rather, the media *would* have done that — if Rudy hadn’t leaked the news of the reimbursement himself last night. The least damaging thing to do under the circumstances is to come clean now and play it off like no big deal. “Oh, sure, Trump paid him back. What of it?” Once that’s out there, then Rudy can start tap-dancing around the thorny questions of when Trump paid him back, how he did it, whether he knew about the payment before Cohen made it, etc.
The reason it didn’t feel like a strategic release of information last night was because *Hannity* was caught off-guard by it. You would think that if Giuliani and Trump were going to confirm on television that he had reimbursed Cohen, they would have given their favorite reporter/advisor a heads up, if only to help him frame the matter in the most favorable light before broaching the subject. Hannity and Giuliani being on different pages during an interview that’s designed from soup to nuts to get Trump’s message out is weird. Even other Fox contributors like Laura Ingraham and Andrew Napolitano were bowled over by it.
But it’s nowhere near as weird as the clip below. Watch two minutes starting at 6:15. The Daniels payoff was not a campaign contribution, Rudy stresses, it was a personal matter. Which is exactly the right thing to say. John Edwards was acquitted a few years ago of campaign finance violations after a few rich friends paid off his own mistress. Why? Because the jury determined that they did it to spare Mrs. Edwards from the embarrassment that her husband was cheating on her, not to help his chances in the 2008 presidential race. A payment is only a campaign contribution if it was made to influence an election; if it wasn’t, then it isn’t — and there’s no legal duty to disclose it. Rudy’s tapping right into that, insisting that this was personal, not a campaign thing.
Until he goes off the rails at around 8:00.
“Imagine if that came out on October 15, 2016, in the middle of the last debate with Hillary Clinton.” Yeah — imagine. It probably wouldn’t have hurt Trump, but you never know. The “Access Hollywood” tape had come out less than a week before. Allegations of sexual assault and harassment were percolating. If a porn star had piped up with reports of an affair, some voters might have decided that there are just too many clowns in the Trump circus to justify voting for him, even if they viewed the Daniels thing in isolation as no big deal. The point is, inexplicably, Giuliani himself is presenting an election rationale for the payment. He’s blowing up his own defense. It wasn’t just a “personal matter” to protect Melania Trump’s feelings, it was a political matter to protect Trump’s chances of winning. And listen: Of course it was. Daniels and her lawyer have made the point many times that if Trump and Cohen were worried about Melania Trump feeling hurt, they could have paid Daniels off anytime between 2007 and 2015, before Trump became a candidate. They waited until three weeks before the election. It reeks of a campaign contribution. And here’s Giuliani all but agreeing.
Maybe it’s true that Trump and Rudy gamed all of this out beforehand and Giuliani is right on script. White House aides don’t appear to have seen that script, though:
Several White House officials were also taken aback by Giuliani’s dramatic interview Wednesday night. One remarked that Giuliani undermined the administration’s entire defense strategy when it came to not just Daniels, but also former FBI Director James Comey and the special counsel, all in the span of a single interview.
One senior White House official told CNN that Giuliani’s performance came off as “clumsy” to them.
Two White House officials told CNN managing the situation is now out of their control, with several others pointing to how Giuliani and Trump have their own conversations before Giuliani goes on cable news, further proving that the President is his own communications director.
Trump didn’t seem upset about Rudy’s comments, CNN’s sources said, which suggests that they really did huddle together on a strategy. But if they did, practically no one else is in on it: “Some of Mr. Trump’s allies were frustrated that they, once again, had no advance warning of the new narrative, making it more difficult to discuss it adequately as surrogates on television.” How could anyone expect Trump to tell his chief of staff and press secretary if he didn’t tell Sean Hannity first?
It’s not just Rudy’s admission about the campaign nature of the payment that’s creating problems. This is a provocative admission too:
“This is like petty cash [to Trump],” Giuliani said. In addition to repaying the $130,000, the arrangement gave Cohen “enough left over for him to profit in .” If Trump paid Cohen $35,000 a month for a year, as Giuliani said, that would be a total of $420,000.
Giuliani’s made that point in several interviews today, that because Cohen’s reimbursement was supposedly done via his monthly retainer, Trump (a) might plausibly have reimbursed him for the Daniels payment without even knowing about the payment and (b) ended up paying Cohen much more than just the $130,000 for Daniels over the course of the year. It all came out of the monthly lump sum that Trump paid to Cohen, in theory. In practice, though, that’s not the way retainers work. The retainer is part of the lawyer’s basic fee; it’s part of his own remuneration. For Cohen to pay someone off on Trump’s behalf out of his own retainer would essentially amount to a gift to Trump: He’d effectively be deducting the Daniels payment from the amount of money to which he’s personally entitled for working for Trump. Imagine that Cohen paid off two other women for Trump in the same amount as Daniels and that those payments came out of his “retainer” too. For all intents and purposes, that would mean he worked for Trump for free for most of the year. It can’t have happened that way. I’m sure Cohen loves Trump and all, but not enough to allow his own salary to be redirected to mistress hush money instead.
The idea that Trump might have somehow reimbursed Cohen for an illegal campaign contribution without realizing it makes the “retainer” arrangement seem like money laundering, with Rudy even agreeing with Hannity at one point last night that the Daniels payment had been “funneled” through Michael Cohen’s law practice. And the fact that he keeps telling interviewers that Trump paid Cohen much more than $130,000 over the course of the year via monthly “retainer” payments leads inescapably to the suspicion that he’s worried more hush-money deals will be uncovered. He said cryptically at one point in his “Fox & Friends” segment that Trump’s retainer payments to Cohen over the course of 2017 covered the Daniels deal “and probably a few other situations that might have been considered campaign expenses,” whatever that means. In case there are more hush-money payments, he’s laying the groundwork here to point to those reimbursements as part of the “retainer” arrangement too. See, Trump just shoveled cash at Cohen every month and Cohen paid people off with it with Trump none the wiser, and, ah, somehow Cohen was okay with that even though the money was supposed to be for him.
The punchline to all this is that, despite Rudy’s best efforts to thread the needle on Trump’s intent to keep him out of legal trouble, he may have implicated Trump in a different federal crime:
[I]n detailing the structure of the payments, Giuliani may have admitted that Trump fudged federal ethics paperwork—paperwork that his lawyers tried, unsuccessfully, to keep Trump from swearing was true and accurate…
“If [the] Cohen loan was not one to [the] campaign, then it was one to you, and you omitted it from your personal federal financial disclosures for the period,” noted Norm Eisen, a former White House ethics lawyer, in a tweet on Thursday. “That’s a crime under 18 USC 1001 & we have filed a criminal complaint with DOJ.”
If Cohen’s initial payment was a loan to the campaign, it should have been reported to the FEC. If it was a loan to Trump personally, it should have been reported on Trump’s ethics disclosure. Catch-22. Even the fact that Trump reimbursed Cohen doesn’t get Cohen out of hot water with the FEC if the initial payment to Daniels is found to be a campaign contribution. You can’t make a loan to a campaign that’s higher than the federal statutory cap on donations, whether or not it’s paid back. That was pointed out today by, among other people, George Conway, Kellyanne’s husband.
Exit question: Why would Trump accuse Daniels of “extortionist” accusations in his tweet this morning when he’s already being sued by her for defamation? All he’s doing is giving a court more reason to let Daniels and her lawyer depose him.