The statement from Giuliani, released Friday afternoon, didn’t address that at all.
Instead, it included three items. Two are below; the third addressed the firing of former FBI director James B. Comey.
“First: There is no campaign violation. The payment was made to resolve a personal and false allegation to protect the President’s family. It would have been done in any event, whether he was a candidate or not.”“Second: My references to timing were not describing my understanding of the President’s knowledge, but instead, my understanding of these matters.”
The point of the second item on Giuliani is obvious. Trump has come under fire for having told the press that he didn’t know about the payment to Daniels, which Giuliani’s announcement about Trump’s having repaid Cohen on Fox News on Thursday seemed to undercut.
But that first point is the one that really lays it all bare. There’s a reason it’s first: It’s the issue about which Giuliani — and, most likely, the rest of Trump’s team — is most worried.
What’s at stake is whether the payment to Daniels violated campaign finance law. By law, contributions from individuals are limited in amount and need to be reported, as do loans made to campaigns. If Cohen had spent $100,000 in October 2016 on an ad in Des Moines promoting the election of Donald Trump, that would be an illegal campaign contribution, given that Cohen was associated with the campaign. A hundred thousand dollars is far more than an individual is allowed to contribute.*
So is $130,000. The question, then, is: Was the payment to Daniels meant to help elect Donald Trump?
Again, the entire reason we’re talking about this right now is because Giuliani volunteered to Fox News’ Sean Hannity that there was no campaign finance violation because the money to pay Daniels didn’t come from the campaign. Those were his first words on the subject. He then “proved” that the money didn’t come from the campaign by asserting that Trump had repaid Cohen.
As we noted that evening, though, that didn’t answer all of the questions about whether the contribution was legal. Even if Trump repaid Cohen, the $130,000 served as a loan to the campaign that needed to be repaid — but, again, only if the payment to Daniels was meant to influence the campaign.
It all comes back to that point. And that’s why it’s the most important point on Giuliani’s three-point list.
He has argued before that the payment had nothing to do with the campaign, we’ll note. But he undercut that point severely on “Fox and Friends” on Thursday morning.
“Imagine if that came out on October 15, 2016, in the middle of the last debate with Hillary Clinton,” Giuliani said of Daniels’s allegation that she had had a one-night stand with the president. “Cohen didn’t even ask. Cohen made it go away. He did his job.”
The pivotal word is “imagine.” If you do imagine that the Daniels allegation came out on Oct. 15, less than a month before the election and while Trump was fending off allegations of improper sexual contact with various women, the implication is that it would have hurt his candidacy. Giuliani, in essence, is stating the obvious: It was useful to the campaign that the Daniels allegation not come out at that point.
Making it very hard to argue that the payment was not meant to aid the campaign. So the first item in Giuliani’s statement argues that “[i]t would have been done in any event, whether he was a candidate or not.”
When we spoke earlier this year with Lawrence Noble, general counsel at the Campaign Legal Center, he noted that proving the intent of something like this was tricky. If Cohen made similar payments regularly, it might help prove that the payment to Daniels wasn’t related to the campaign and, therefore, wasn’t a campaign contribution. That alone, though, wouldn’t be proof that it wasn’t related to the campaign, just evidence of it. To answer the question of intent, you would really need some sort of documentary evidence of what the intent happened to be.
Which brings us to Daniels’s attorney, Michael Avenatti.
On MSNBC’s “The Last Word” on Thursday night, host Lawrence O’Donnell asked Avenatti if such documentary evidence existed.
Avenatti implied that it did.
“There were extensive communications between Michael Cohen and Keith Davidson” — Daniels’s attorney at the time of the payment — “in October of 2016, relating to the timing of this payment and the need for the payment to be made prior to the election,” Avenatti said forcefully. “Extensive communications relating to the need for the payment to be made, when it was made and as it related to potential influence on the election. Period.”
He continued: “Everyone involved in this transaction around the time knew the importance of the payment as it related to the election. So any claim that the payment had nothing to do with the election is completely bogus.”
Avenatti can make what claims he wants, of course, and he’s not generally shy about doing so. When he refers to extensive communications, it’s not clear whether he means email communications. But that seems likely. We know from an NBC report in March that Davidson and Cohen communicated over email, and it takes only one message in which Cohen asserts that the payment is needed to keep Daniels quiet before the election to move the needle. (Avenatti declined to offer more details in a phone call with The Post.)
The Federal Election Commission is not known as a robust enforcement body. The FBI can and has investigated campaign finance violations but, as Giuliani noted to Hannity, the ramifications for violating contribution and reporting statutes is generally a fine. Why a violation of campaign finance law would be particularly worrisome to Trump’s team isn’t totally obvious.
That it’s worrying them? Giuliani’s statement leads with an insistent denial of a violation, subsequently tries to distance the payment from the campaign and completely abandons his original defense based on a repayment from Trump.
It’s worrying them.
* The law is complicated, and there are scads of exceptions and howevers that apply to this paragraph. In broad strokes, though, this is accurate.