Rudy Giuliani's media tear makes it clearer than ever that Melania Trump will be a critical figure in the Stormy Daniels saga
- Rudy Giuliani's recent comments about the Stormy Daniels payment make it clear that Melania Trump will be a central figure in the ongoing saga of the president and the porn star.
- Giuliani said President Donald Trump reimbursed his longtime lawyer, Michael Cohen, for the $130,000 hush money payment to Daniels, a porn star who alleged that she had an affair with Trump in 2006.
- Now Trump's team will seek to convince the public, and possibly a courtroom, that the payment was not made to boost Trump's candidacy but to protect his wife, Melania, from embarrassment.
With President Donald Trump's new attorney, Rudy Giuliani, causing a media firestorm with his days of commentary on the Stormy Daniels saga, it's become clearer than ever that first lady Melania Trump will be a critical figure in the ongoing battle over a $130,000 hush money payment to the porn star.
On Wednesday, Giuliani told Fox News host Sean Hannity that Trump reimbursed his longtime lawyer Michael Cohen for the payment. Cohen had previously denied that Trump reimbursed the payment, and Trump denied any knowledge of the October 2016 payoff to Daniels, who alleged that she had an affair with the president in 2006. Daniels' real name is Stephanie Clifford.
Giuliani's rationale for revealing the payment was to, in his mind, quash the idea that it was an illegal campaign contribution - that Trump had personally repaid Cohen, thus eliminating any culpability for an illegal contribution. That is not necessarily true, as Trump could still land in hot water over the fact that the payment went unreported to the Federal Election Commission (FEC) and on Trump's financial disclosure to the Office of Government Ethics.
To squash the former of those two possible legal problems, Giuliani - like Cohen before him - insisted that the payment was not to boost Trump's candidacy, but to protect his family, particularly his wife, Melania, from "heartache," as he told NBC News on Thursday.
Others said Trump would be able to alleviate much of the controversy around the payment if it truly was to prevent Melania's embarrassment.
"If Trump himself paid Cohen back, he could make the argument that he was doing it to hide the affair from Melania," Jeffrey Cramer, a longtime former federal prosecutor who spent 12 years at the Department of Justice (DOJ), told Business Insider previously, adding, "That wouldn't constitute a political contribution and it gives Trump some cover, because the fact that he's had affairs is hardly a revelation and it's certainly not criminal."
It's the John Edwards defense.
The former Democratic senator from North Carolina and failed presidential candidate faced a high-profile trial over payments some supporters made to his mistress, Rielle Hunter, in the lead-up to the 2008 election cycle. Edwards was prosecuted on six counts by the Justice Department, one of which he was acquitted on while the jury was hung on the other five, resulting in a mistrial. The case was not brought back forward.
How the Edwards case and the Daniels ordeal compare
Business Insider's Josh Barro wrote on the subject earlier this year, noting that the central focus of that case was whether outside spending to conceal an affair constituted a campaign expenditure.
"Edwards wasn't convicted, but his jury hung on several counts, and the trial was driven by factual questions: Did Edwards know about the payments, and was their purpose political, or were they simply intended to keep the peace within Edwards' marriage?" Barro wrote.
At least to enough members of the jury, Edwards was able to make a credible enough case that the payments were not made to boost his candidacy but to keep peace with his wife. And it's clear based on Giuliani's and Cohen's comments that this is the argument they might want to make. But there are some distinct issues that will make it more difficult for them to do so.
"Both motive, and timing and motive, are relevant distinctions," Paul S. Ryan, vice president of policy and litigation at Common Cause, the group that filed the initial DOJ and FEC complaint about the Daniels payment, told Business Insider last month. "With respect to motive, John Edwards's lawyers made a big deal at the trial about the fact that the DOJ had zero evidence that Hunter was talking to the press about going public with her story or even contemplating it."
The payments to Hunter coincided with the affair and subsequent pregnancy, rather than any threat of Hunter going public with her story.
Daniels had first come forward with her story in a 2011 interview with a celebrity gossip magazine. She said during a recent "60 Minutes" interview that Trump worked to squash the piece from being published. Cohen approached her with the hush money and nondisclosure agreement once word got out that she was considering coming forward in a new interview.
Edwards's "lawyers argued that this was not about hiding this affair and this pregnancy from the public and the press, this was about hiding the affair and the pregnancy from John Edwards's very sick wife," Ryan continued. "And so, by contrast, we know, as a factual matter, that Stormy Daniels made it clear she was talking to multiple national media outlets in October of 2016 and contemplating going public with her story. And that's what got Donald Trump's attention."
"So much closer to the nexus of the presidential general election was the Stormy Daniels payoff than the John Edwards payoff," Ryan said.
'Those arguments are much harder to make after Giuliani's statement'
Giuliani, meanwhile, said in a Thursday "Fox and Friends" interview that the information would have been politically damaging to Trump if it came out in October 2016, right before the presidential election. But on Friday, he sought to clarify those comments, saying in a statement that the reference to timing was simply his own observation and not the president's.
In the same statement, he said the payment was made "in order to protect the President's family."
Trevor Potter, a former commissioner and chairman of the FEC and the current president of the Campaign Legal Center, said Giuliani's initial comments to "Fox and Friends" will make it much more difficult for Trump's team to argue that the payment was to prevent Melania's embarrassment. (Both Cohen and Trump aides have denied any affair took place.)
"Those arguments are much harder to make after Giuliani's statement that the payment prevented news of the affair emerging before the Clinton-Trump debates, since that is an admission that the confidentiality agreement and the timing of the payment influenced the 2016 elections," he said in a statement.
Ryan said the Melania argument will likely be the one Trump's team ends up making. But the other "factual circumstances" here make the argument less likely to hold up in the same way it did for Edwards.
"The payments to Hunter coincided with the affair and the pregnancy," Ryan said. "With Stormy, it happened more than a decade after the affair took place. Further investigation may ... undercut any argument by Michael Cohen that this payment wasn't about keeping the information from voters but to keep the information from Melania. We'll see about that. It seems unlikely given the decade lapse in time."