“I think the Edwards case is not as strong as the facts we have so far in the Trump case,” Potter said.
Let's review some of the facts.
Edwards, John F. Kerry's running mate in 2004, sought the Democratic presidential nomination in 2008. During the race, the National Enquirer reported that Edwards had fathered a child with campaign videographer Rielle Hunter. Edwards initially denied the report but, after dropping out, ultimately admitted to the affair, which he carried on while his wife, Elizabeth, battled breast cancer.
In 2011, a federal grand jury indicted Edwards in connection with large payments that had been made on his behalf to support Hunter and keep her quiet. The money, more than $1 million in all, came from Democratic donor Rachel “Bunny” Mellon and Fred Baron, Edwards's campaign finance chairman in 2008.
Justice Department prosecutors sought to prove that Edwards had participated in the payoff scheme and that the gifts from Mellon and Baron should be categorized as campaign contributions — well in excess of legal limits — because they were meant to influence voters by concealing the affair.
At trial, Edwards's lawyers argued that the payments were aimed instead at hiding the affair from Edwards's wife. Jurors acquitted Edwards on one count related to a payment made after he had already suspended his campaign and deadlocked on five other counts. The judge declared a mistrial, and the Justice Department opted not to retry the case.
The apparent parallel to Trump's situation is that the president's personal attorney, Michael Cohen, paid Daniels $130,000 to remain silent, much as Mellon and Baron paid Hunter. Though prosecutors could not convince a jury that the payments to Hunter should be treated as campaign contributions, Potter, the former FEC chief, said the timing of the payment to Daniels — 11 days before the 2016 election — strengthens the case for classifying the money as a political donation.
Potter added that Daniels was paid for silence at a time when “Trump's conduct with women was a prime campaign issue. In fact, it was what everyone was focused on.”
Cohen, perhaps anticipating the sort of argument presented by Potter, told Vanity Fair last week that “people are mistaking this for a thing about the campaign. What I did defensively for my personal client, and my friend, is what attorneys do for their high-profile clients. I would have done it in 2006. I would have done it in 2011. I truly care about him and the family — more than just as an employee and an attorney.”
Cohen's remarks are essentially a revival of the successful Edwards defense: The payment was about protecting the family from public anguish, not about influencing voters.
Trump has something else going for him, besides the Edwards precedent. However implausible it may seem that Trump did not know what his attorney was doing for him, it remains unproven that the president even knew about the payment to Daniels — much less solicited the money or conspired with Cohen to keep Daniels quiet.