How Trump's lawyers are becoming a liability

“TAKE away credentials” from “Fake News”, tweeted President Donald Trump on May 9th. Such outbursts are usually a sign that Mr Trump is feeling the pressure. The day before, Michael Avenatti—the lawyer representing Stephanie Clifford, an adult-film star who performs as Stormy Daniels, with whom Mr Trump allegedly had an affair—released a document claiming that a payment made by Michael Cohen, Mr Trump’s longtime lawyer and fixer, to Ms Clifford may have come from “a Russian oligarch with close ties to…Vladimir Putin”. Just a few days earlier Rudy Giuliani, one of Mr Trump’s lawyers, inadvertantly raised the possibility that the president may have violated campaign-finance laws. How much trouble is Mr Trump really in?

At least $4.4m flowed through Essential Consultants, a company created by Mr Cohen, between October 2016 and January 2018. Columbus Nova, an American investment firm with links to Viktor Vekselberg, an oligarch close to Mr Putin, paid Essential Consultants $500,000 as a consulting fee. The firm says that Mr Vekselberg had nothing to do with the payment. AT&T, Novartis and Korean Aerospace Industries also paid sizeable fees to Mr Cohen’s firm.

Where the money went, and what the companies got for it, remain unclear. Perhaps Mr Cohen simply persuaded them that he had insight or access worth paying for. That is tawdry, but regrettably common in Washington. Corey Lewandowski, one of Mr Trump’s campaign managers, set up a consultancy after Mr Trump won in order to profit from his ties to the president; Paul Manafort, another campaign manager, is a veteran of the cash-for-influence business.

The campaign-finance question is thornier. Just weeks before the 2016 election, Mr Cohen arranged a $130,000 payment—through Essential Consultants, naturally—to Ms Clifford in exchange for her silence about an alleged affair with Mr Trump. Mr Trump’s name is not on the agreement. Messrs Cohen and Trump both say that the affair with Ms Clifford never happened (though they paid her anyway).

On May 2nd, however, Mr Giuliani told Sean Hannity, a talk-show host and fervent backer of Mr Trump, that Mr Trump “funnelled [the $130,000] through a law firm and…repaid it.” In a television interview four days later Mr Giuliani allowed that Mr Cohen might have paid off other women on Mr Trump’s behalf. In all Mr Trump paid Mr Cohen around $460,000—the initial repayment plus extra to cover taxes and, as Mr Giuliani put it to the Washington Post, “a few other situations that might have been considered campaign expenses.”

Mr Giuliani contends that because the payment to Ms Clifford—which the president previously said he knew nothing about—came from Mr Trump’s personal rather than campaign funds, and would have been made regardless of his candidacy, the payment did not violate federal campaign-finance laws. That sounds conclusive enough. But there are many ways to fall foul of campaign-finance laws.

A candidate may spend as much of his own money on trying to get elected as he likes; it just has to be reported as a campaign contribution, which this payment was not. Then there are caps on donations. In general elections, individuals cannot contribute more than $2,700—well below what Mr Cohen gave Ms Clifford—to a specific candidate. Nor can they use their own names to disguise a contribution’s true source, which in this version of the story the White House cannot get straight, would be Mr Trump.

The relevant federal statute defines a contribution as “any gift, subscription, loan… or anything of value made by any person for the purpose of influencing any election for federal office.” Mr Giuliani told a trio of Fox News hosts that the payment “was for personal reasons”, not political ones. But he immediately undercut that claim, musing, “Imagine if that came out on October 15th 2016, in the middle of the last debate with Hillary Clinton…Cohen made it go away.”

Jed Shugerman, a law professor at Fordham University, calls Mr Giuliani’s strategy “admit and spin”: admit the repayment, because federal investigators probably know about it anyway, and portray it as normal, non-felonious conduct. Others posit that Mr Giuliani is trying to overwhelm and confuse, so voters do not know whom to believe. There is also a third possibility, which is that two septuagenarians who surround themselves with flatterers are not the most adept legal strategists.

The Federal Election Commission (FEC) can impose fines for accidental campaign violations. But “knowing and wilful violations” of campaign-finance laws are felonies, punishable by up to five years in prison. That landed John Rowland, a former governor of Connecticut, in federal prison for 14 months. And John Edwards, a former senator and presidential candidate, was prosecuted for paying his former mistress to ensure her silence. The Justice Department argued that the funds, which came from a donor, were campaign contributions because they were meant to help Mr Edwards hide the affair from voters.

That does not mean that Mr Trump is about to be hauled out of the Oval Office in handcuffs. Politically, the bar to file charges against a sitting president is higher than the bar for a failed candidate or ex-governor. The entity that the president calls “the Trump Justice Department” would have to want to prosecute, which seems unlikely. Yet for all Mr Trump’s grousing about “fake news”, prosecutors have indicted a number of his former associates. He has duly begun distancing himself from Mr Cohen, whom he now says performed “a tiny, tiny fraction” of his “overall legal work”.

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