Giuliani Has to Incriminate the President in Order to Save Him?

It looks like we’re all going to learn more about campaign finance law than we want to know. For example, did you know that you can’t lend your friend money for groceries if he’s a candidate for office without that being considered a way of influencing the campaign? Your grocery loan would have to be reported as a campaign contribution, subject to all applicable per-election limits. You could loan your buddy $2,700 to help him keep his fridge stocked, but it would exceed the limits and be a crime to give him $130,000 to spend on stocking his End Days bomb shelter.

Trump’s new attorney, Rudy Giuliani, has now made appearances on both Fox & Friends and Sean Hannity’s television program and made quite clear both that Michael Cohen loaned Donald Trump $130,000 and that the purpose of the loan was to prevent his affair with Stormy Daniels from becoming a topic in the third and final presidential debate.

It’s true that Giuliani has also offered other motives for the pay-off, including saving Trump from embarrassment and preventing possible problems in his marriage to Melania. Legally speaking, though, Trump could have spent the $130,000 filling his extra freezer with Japanese Wagyu Rib Eye steaks and it wouldn’t make any difference. Money is fungible, and a candidate’s time is a limited resource. Time he doesn’t have to spend dialing for dollars is time he can spend on the campaign trail. You can’t give candidates for office giant loans. We have banks for that.

The Federal Election Commission is clear that Cohen’s loan to Trump cannot be considered Trump’s money.

Not considered the candidate’s personal funds

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.

This isn’t some sensational crime. It’s a technical campaign finance violation that can be addressed by correcting the record and paying all applicable fines and penalties. It’s pretty much the definition of a low crime or low misdemeanor, as opposed to an impeachable offense. On the other hand, considering the size of the loan and what it was actually for, it isn’t a small violation and would be enough to end most politicians’ political careers. This is especially true when we consider how many lies Trump and his surrogates have told the public about this matter.

Of course, Donald Trump is not your ordinary politician, and not only because he’s the president. That he’s an unfaithful husband and a liar who sleeps with Playboy models and porn stars without using anything to protect his wife from contracting venereal disease or HIV is not shocking to the public or particularly damaging to him.

In this case, his brief tryst with Stormy Daniels may end his presidency for a reason he never anticipated, which is that it gave the Feds a rationale for getting a warrant to seize Michael Cohen’s legal and business records. Trump can sustain the fallout from his lying about extramarital affairs, just as Bill Clinton survived despite lying under oath. But can he survive scrutiny of Michael Cohen’s other activities?

To me, that’s doubtful.

It’s hard to assess how much of Rudy Giuliani’s behavior can be considered legal cluelessness and how much of it can be considered an example of taking a bullet to the leg in order to prevent a bullet to the heart. Presumably, they know that the old lies about the Stormy Daniels payment cannot be sustained now that the Feds have Cohen’s records. They can no longer defend against a campaign finance violation so there’s no point in trying. Their main concern is trying to prevent Cohen from becoming a cooperating witness, so Rudy says, “Cohen made it go away. He did his job.”

It hasn’t gone away though.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.