Like doctors, lawyers operate with a principle in mind: First, do no harm.
Rudolph W. Giuliani, President Trump’s newly hired attorney, violated that rule repeatedly in Wednesday night’s interview with Fox News Channel’s Sean Hannity and in subsequent statements. Giuliani’s performance left the president exposed to possible liability for campaign finance, ethics and false statements violations — and, for good measure, deepened Trump’s obstruction of justice peril.
Giuliani’s most explosive revelations related to the $130,000 payment Trump’s “fixer” Michael Cohen made to adult-film star Stormy Daniels for her silence about an alleged affair she had with Trump. Until a couple of days ago, the president and his aides had responded to questions about the hush money by saying that the president knew nothing of it.
Our watchdog group filed a complaint with the Department of Justice and the Office of Government Ethics on Thursday, asking officials to investigate whether Giuliani’s disclosures show that Trump violated federal ethics laws or laws against making false statements. 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 repeatedly acknowledged on Wednesday and Thursday that Trump owed Cohen $250,000, accounting for the $130,000 payment to Daniels and associated taxes and fees. But Trump’s public financial disclosure report last summer didn’t list any debts to Cohen. A knowing failure to report such a debt constitutes a federal crime, and failure to properly report that liability can result in penalties up to $50,000, as well as imprisonment. Moreover, lying on a financial disclosure report can be the basis for federal false statements charges under 18 USC 1001.
That complaint built on an earlier one we had filed, raising the question of whether Trump had an undisclosed liability to Cohen. In his attempt to advocate for his client, Giuliani seemingly confirmed that supposition. Federal authorities should investigate, including Robert Khuzami, the deputy U.S. attorney for the Southern District of New York. He and the public integrity section of that office are investigating Cohen for the Daniels payment and other issues, and this acknowledged loan fits neatly with that. Alternatively, Deputy Attorney General Rod J. Rosenstein could assign it elsewhere, including to special counsel Robert S. Mueller III.
If federal authorities decide to act based on Giuliani’s comments — and they should be giving a serious look to see whether such action is merited — he left them other threads to follow, too.
Cohen was in some legal jeopardy because if he had paid Daniels out of his own funds, that might mean he had knowingly made an in-kind campaign contribution well in excess of the $2,700 limit per election to a federal candidate. But that story had at least distanced Trump from that or other alleged violations.
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Giuliani swept all that away when he disclosed that the payment to Daniels was “funneled . . . through a law firm and the president repaid it . . . over a period of several months.” Trump, apparently, had paid Cohen a retainer of $35,000 a month starting sometime after the election and continuing until the president had paid his longtime fixer between $460,000 and $470,000, which also covered interest, reimbursement for what Giuliani called “incidental expenses,” and perhaps profit as well as payment for other work related to the campaign. All of that contradicts the president’s unequivocal denial last month that he knew anything about the payment to Daniels.
Giuliani is advancing the defense that because campaign money was not used to pay Daniels, there is no problem. That is a red herring. The problem with the transaction was always the fact that it was money from outside the campaign being spent for a campaign-related purpose: preventing Daniels from speaking during the final weeks of the campaign about her alleged affair with Trump.
By revealing the repayment scheme, Giuliani implicated Trump in Cohen’s apparent misconduct. Even the best-case scenario — that the president in effect made a six-figure contribution to his own campaign — is an apparent violation of law because it was undisclosed. Should the facts continue to develop in this unflattering direction for Trump (and who really believes that the whole truth has come out?), prosecutors may find themselves contemplating more aggressive theories such as whether the president aided and abetted criminal activity by Cohen or conspired with him to break the law and cover it up — and these directions are only possible thanks to Trump’s new lawyer, still in his first week on the job.
As if all that were not bad enough, there was a third area of Trump’s exposure that Giuliani deepened: obstruction of justice. Here Giuliani harmed his client by offering that the president “fired [former FBI director James] Comey because Comey would not, among other things, say that he wasn’t a target of the investigation.” Far from exculpating Trump, this assertion could constitute evidence that the president was acting with the corrupt intent necessary to establish obstruction. What could be more emblematic of wrongful purpose than a demand to curtail a federal law enforcement matter prematurely and out of self-interest? Comey naturally refused to make a public announcement that Trump was not a target; at best, that would create troubling optics, and at worst, it would short-circuit the investigation that was and is ongoing.
Also damning was that Giuliani’s new justification comes on top of earlier, differing rationales. Shifting explanations for a person’s actions can be evidence of his corrupt intent, and for good reason: When a person keeps identifying new motives, it increases the likelihood that one or all of the explanations offered are not honest. Recall that initially the White House justified Comey’s firing on the grounds that he mishandled the investigation of Hillary Clinton. Then within days, Trump said that he fired Comey because of the “Russia thing.” He even reportedly had the audacity to tell Russian officials in the Oval Office that he “faced great pressure because of Russia. That’s taken off.”
So, thanks to Giuliani’s catastrophic performance, yet another fresh start for Trump’s legal team has been squandered. The president and his attorneys are running empty on credibility. Replenishing it becomes impossible at some point after repeated miscues. If prosecutors, judges and even the American people no longer believe what Trump and his lawyers say is true, they will assume the worst. Contrasted with the methodical and straightforward approach of the Department of Justice, this is beginning to feel like a war that the president is not going to win.