Rarely does a lawyer implicate a client as being guilty of federal crimes on national television, but that is exactly what Rudy Giuliani has done to Donald Trump. Giuliani’s recent revelation on Fox News that Trump reimbursed Michael Cohen the $130,000 that had been paid to Stormy Daniels has potentially enormous legal consequences.
Here’s what is known for certain. In October 2016, Trump’s attorney, Michael Cohen, paid Daniels $130,000 in exchange for her signing an agreement that she would not publicly disclose her affair with Trump. Giuliani made explicit what everyone suspected: The payment was to help Trump’s election bid by preventing the story of the affair from being public. In an interview with Sean Hannity, Giuliani declared: “Imagine if it came out on October 15, 2016, in the middle of the last debate with Hillary Clinton. Cohen didn’t even ask. Cohen made it go away. He did his job.”
Giuliani subsequently said that the reimbursement to Cohen totaled $460,000 or $470,000, but it was unclear what else the payments were for beyond the $130,000 that went to Daniels. Then, in an interview with George Stephanopoulos, Giuliani said that other women may have been paid for their silence as well.
At the very least, Giuliani showed Trump as having lied to the American public. On several occasions, Trump had said he knew nothing about the payment to Daniels. In fact, Trump had stated that he did not know why Cohen had made the payment or where he got the money.
Before getting to why this shows that a federal crime occurred, I am stunned that there is not more outrage that a candidate for president paid someone $130,000 to keep their affair secret in the weeks before the election and then repeatedly lied about it to the American public. Is it that we all have come to expect such behavior from Trump? Is it that Republicans will stand by Trump no matter how sleazy his behavior?
The problem for Trump and Cohen is that these revelations show their culpability for a federal crime. Federal law prevents a person from contributing more than $2,700 to a campaign in cash or in-kind services. The Federal Election Campaign Act of 1971 defines a “contribution” as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.”
All contributions must be disclosed. Giuliani made clear that the point of paying off Daniels was to help influence the outcome of the election by keeping her quiet. In fact, it is virtually identical to what John Edwards was prosecuted for in federal court, though Edwards ultimately was acquitted.
Giuliani recognized the import of his disclosures, but then asserted that there was no violation of federal campaign finance laws. Trump has said the same thing. But Giuliani’s explanations only made it worse for Trump.
Giuliani said, “The - that money was not campaign money, sorry. I’m giving you a fact now that you don’t know: It’s not campaign money. No campaign-finance violation.” Sean Hannity, the host of the television program, then said: “So they funneled it through the law firm?” Giuliani nodded and replied, “Funneled it through the law firm, and the president repaid it.”
If true, that clearly violates federal campaign finance law. Giuliani tried to minimize this by saying that it is the kind of violation that just leads to fines. That is a strange defense of a client: He broke the law, but he’ll just get fined. But it is also wrong about the law because willful violations of campaign finance laws are punishable by imprisonment.
Giuliani’s revelations raise other legal problems for Trump. The Ethics in Government Act requires filers of public financial disclosure forms, including the president, to disclose any liabilities worth more than $10,000. Giuliani said that Trump paid Cohen $460,000 or $470,000, including the $130,000 paid through Cohen to Daniels.
But Trump’s public financial disclosure report last summer didn’t list any debts to Cohen. It is a federal crime - punishable by penalties up to $50,000 and imprisonment - to fail to report such a debt. Also, lying on a financial disclosure report violates the federal law prohibiting making false statements to the federal government.
Why did Giuliani reveal all of this? Maybe he knew that it was about to come out and wanted to be the source and try to defuse this. Maybe he made a mistake by telling more than he meant to in the conversation with Hannity. But whatever his motivations, Giuliani made Trump’s legal situation much worse.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He wrote this for the Sacramento Bee.