Rudy Giuliani's media tear makes it clearer than ever that Melania Trump will be a critical figure in the Stormy Daniels saga

Mark Wilson/Getty ImagesMelania Trump.
  • Rudy Giuliani’s recent comments about the Stormy Daniels payment make it clear that first lady Melania Trump will be a central figure in the ongoing saga of the president and the porn star.
  • Giuliani said President Donald Trump reimbursed Michael Cohen, Trump’s longtime lawyer, for the $US130,000 hush-money payment to Daniels, an adult-film actress who says she had an affair with Trump in 2006.
  • Now Trump’s team will most likely 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 from embarrassment.

With President Donald Trump’s new lead attorney, Rudy Giuliani, causing a media firestorm with his days of commentary on the Stormy Daniels saga, it has become clear that first lady Melania Trump will be a critical figure in the ongoing battle over a $US130,000 hush-money payment to the adult-film actress.

On Wednesday, Giuliani told the Fox News host Sean Hannity that Trump had reimbursed Michael Cohen, his longtime lawyer, for the October 2016 payment to Daniels, who says she had an affair with Trump in 2006.

Cohen had previously denied that Trump reimbursed him, and Trump had denied knowing about the payment. Both Cohen and Trump’s aides have denied that any affair took place.

Giuliani’s rationale for revealing the payment was, in his mind, to quash the idea that it was an illegal campaign contribution – he sought to show that Trump had personally repaid Cohen, thus eliminating any culpability.

But Trump could still land in hot water because the payment went unreported to the Federal Election Commission and on Trump’s financial disclosure to the Office of Government Ethics.

To quash the first of those two possible legal problems, Giuliani, like Cohen before him, insisted that the payment was not meant to boost Trump’s candidacy but to protect his family – particularly his wife – from “heartache,” he told NBC News on Thursday.

Others said the president 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, previously told Business Insider.

Cramer added: “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 defence.

The former Democratic senator from North Carolina and 2008 presidential candidate faced a high-profile trial about payments some supporters made to his mistress, Rielle Hunter, ahead of the 2008 election cycle. The Justice Department prosecuted Edwards on six counts – he was acquitted on one, and the jury was hung on the other five, resulting in a mistrial. The case was not retried.

How the Edwards case and the Daniels ordeal compare

Business Insider’s Josh Barro wrote on the subject earlier this year, noting that the focus of Edwards’ 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 case that the payments were not to boost his candidacy but to keep the 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 some distinct issues would make that more difficult for them.

“Timing and motive are relevant distinctions,” Paul S. Ryan, the vice president of policy and litigation at Common Cause, the watchdog group that filed the initial DOJ and FEC complaint about the Daniels payment, told Business Insider last month.

“With respect to motive, John Edwards’ 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,” Ryan said.

The payments to Hunter instead coincided with an affair and subsequent pregnancy.

Daniels first came 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 prevent the publication of the piece and that Cohen approached her with the hush money and nondisclosure agreement once word got out that she was considering telling her story in another interview.

Edwards’ 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’ very sick wife,” Ryan said. “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.”

Donald trump us president nraJustin Sullivan/Getty ImagesPresident Donald Trump.

The other issue that makes the case against Cohen and Trump stronger than the one against Edwards is the timing of the payments, Ryan said.

The payments to Hunter were made before any primary ballots were cast. But Cohen, who is now the focus of a federal criminal investigation into possible campaign finance violations and bank fraud, paid Daniels days before the 2016 presidential election, lending the appearance that the payment’s purpose was to protect electoral results instead of someone like his wife.

“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 interview on “Fox & Friends” that Daniels’ story would have been politically damaging to Trump if it had come out in October 2016, around the time of the last debate between Trump and Hillary Clinton, the 2016 Democratic nominee.

On Friday, Giuliani 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 statement, Giuliani said the payment was made “in order to protect the President’s family.”

Trevor Potter, a former commissioner and chairman of the FEC who’s now the president of the Campaign Legal Center, said Giuliani’s initial comments to “Fox & Friends” would make it much more difficult for Trump’s team to argue that the payment was meant to prevent his wife’s embarrassment.

“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,” Potter said in a statement.

Ryan said the Melania argument would most likely be the one Trump’s team ends up making. But he said the other “factual circumstances” would make it 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.”

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