What the Hell Is Rudy Giuliani Doing?
Donald Trump's second-newest lawyer is going all in on litigating the president's scandals in the court of public opinion.
By Jay Willis
Photo illustration by Alicia Tatone
On Wednesday evening, for a few brief, glorious moments, Rudy Giuliani accomplished a task that media observers had heretofore assumed to be impossible: transforming Sean Hannity into a real, if involuntary, journalist. The president's second-newest lawyer told the president's first-best friend that despite Donald Trump's repeated denials that he knew of or was involved with Michael Cohen's hush money payments to Stormy Daniels, Trump in fact knew of the "general arrangement" and repaid his longtime lawyer/fixer/bumbler for his troubles. Somehow, a stunned Hannity resisted the urge to emit a high-pitched scream as a sort of manual bleep button to shield presidential lies from the American public.
Later, Giuliani clarified that his purpose was to put to rest persistent allegations that Cohen's payment could be construed as a campaign finance violation, and Trump knew that Giuliani would be torpedoing the president's farcical narrative about this entire episode on national television. Since Cohen "funneled" the cash to Daniels through his law firm, and Trump repaid Cohen from his personal funds, the money "was not campaign money," Giuliani explained to Hannity. In other words, because none of the checks were written by "Donald J. Trump for President," the payment was a "perfectly legal" one.
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This is a statement of opinion, not of law. Giuliani seems to be conflating funds of the campaign with funds for the campaign. If someone spends money in order to influence an election, their ability to mask that expenditure behind shell corporations and wink-wink reimbursement arrangements does not necessarily alter its purpose. Giuliani acknowledged the absurdity of his own argument in a Fox & Friends interview on Thursday. "Imagine if [the Daniels affair] came out on October 15, 2016, in the middle of the last debate with Hillary Clinton," he said, apparently under the impression that linking the story to its potential electoral consequences would make the money seem less connected to the election.
This common-sense principle is detailed in a section of the Federal Election Commission's web site entitled "Help for candidates and committees," which would have been good for one of Donald Trump's handlers to read at some point over the last three years.
If any person, including a relative or friend of the candidate, gives or loans the candidate money "for the purpose of influencing any election for federal office," the funds are not considered personal funds of the candidate even if they are given to the candidate directly. Instead, the gift or loan is considered a contribution from the donor to the campaign, subject to the per-election limit and reportable by the campaign. This is true even if the candidate uses the funds for personal living expenses while campaigning.
What's going on here? Yes, Rudy Giuliani is a dusty stegosaurus fossil on the fringes of political relevance, but it's hard to imagine him committing such a colossal unforced error that could have been avoided with a few minutes of Googling. One possibility is that as the U.S. attorney's investigation into Michael Cohen deepens, Giuliani decided that his client should come clean about the scope of the Cohen-Trump arrangement order to limit potential collateral damage. Better to admit to a comparatively minor lie now than risk being associated with Cohen's rapidly-accumulating legal troubles.
This move may also have been prompted by the publication of the list of subjects that Mueller's team hopes to discuss with Trump in a still-hypothetical sit-down interview. Although the Daniels affair does not appear on the list, Cohen's name pops up several times, and the affair's absence from a New York Times story does not somehow make it off-limits to Mueller's team. The president's tendencies to embellish and to ramble remain his greatest sources of potential legal jeopardy. Putting details of the Trump-Cohen relationship in the public domain might be an attempt to reduce the likelihood that Trump perjures himself if he is asked about his fixer while under oath.
In any case, Giuliani's admission is more evidence that as Robert Mueller's team closes in on the Oval Office, Trump has decided to double down on litigating the president's scandals in the court of public opinion. His team understand that as long as Paul Ryan refuses to fulfill his constitutional obligation to hold the executive branch accountable, the most robust method of bringing a president to justice—impeachment—is also the least likely. Going on cable news and making a preemptive, point-by-point case for Trump's innocence is the surest method of convincing the base that they needn't pay attention to investigation-related hysteria anymore. And if this strategy crosses enough items off the list, it might also convince Fox News' most powerful viewer that Mr. Mueller's services as special counsel are no longer needed.