Below is my column in USA Today on the disastrous interviews given by Rudy Giuliani where he made a series of damaging statements on the Stormy Daniels scandal and other matters related to President Donald Trump. He has since walked back his remarks and President Trump has said that Giuliani needs to “get his facts straight” and said that people had to “learn before you speak. It’s a lot easier.” Giuliani seemed to contradict himself in the same interview and tripped more wires for potential criminal and ethical violations. Giuliani who emphasized that “zero” money for Daniels came from the campaign seemed to fundamentally miscomprehend the law which is designed precisely to catch contributions coming from outside the campaign reporting system. While doing little for the defense, it did create new questions about the failure to report the loan, the use of payments disguised as fees, and the obvious conflict with Cohen’s own recollection and statement — a point that Cohen himself made to the media.
Here is the column:
One day after President Trump added a major league lawyer to his lineup in the form of Emmett Flood, the Trump legal team returned to playing T-ball on television. Rudy Giuliani sat down with both Fox News host Sean Hannity and the Fox and Friends crew, and added incomprehensible moments to an increasingly incomprehensible defense.
First came Hannity, who asked Giuliani about Russians giving dirt on Trump to the investigator Christopher Steele, paid by the Hillary Clinton campaign. Giuliani’s response will now enter the Hall of Fame of the greatest non sequiturs in history. Giuliani immediately started talking about Stormy Daniels and said, “Sorry, I’m giving you a fact now that you don’t know.”
He then proceeded to directly contradict the past denials by both the president and Trump lawyer Michael Cohen that Trump had no knowledge of the $130,000 paid to the porn star. It was clearly a planned moment where the Trump team would start the awkward process of tacking away from the president’s denials and toward defensible legal ground.
Trump’s past blanket denials were consistent with Cohen’s past insistence that he received no reimbursement for the Daniels’ payments, and that the president had no knowledge of the agreement or the payments. The problem is that the denials were manifestly implausible and increasingly in conflict with developing facts.
The defense team likely saw a painful change in Trump’s account as inevitable and decided that it was time to take the hit. Indeed, the team might have concluded that changing the president’s factual account is unlikely to come at a political cost. The White House may have been encouraged by a new NBC News poll that shows 76% of Republicans still believe Trump tells the truth “all or most of the time.” The White House may feel that Trump’s base is virtually immune from glaring contradictions by the president.
Giuliani asserted Thursday on Fox and Friends that the payment of hush money just before the election “wasn’t for the campaign” — reflecting a clear calculus that the logically implausible can still be legally defensible. Thus, if the money is claimed to be, as suggested by Giuliani, an effort “to save their marriage,” it makes the motivation personal rather than political.
However, this change in the narrative then changed immediately when Giuliani corrected himself to say, “Not their marriage as much as their reputation.”
If it is about reputation, it brings the matter back toward the campaign.
It remains to be seen whether Trump’s team has found a better legal footing. Giuliani describes the money as being “funneled” through Cohen in the form of attorney fees — a practice that would seem at best deceptive and at worse potentially criminal or unethical in some respects. It is like saying you did not rob the bank, you only embezzled through a banker.
According to Giuliani, a monthly retainer for attorney fees was used to pay hush money and the president “did know” of the general arrangement. Giuliani also suggested that virtually the entirety of the retainer fees were for this purpose, but that Cohen was given “retainer of $35,000 when he was doing no work for the president.” Giuliani said it was meant to pay Cohen back “with a little profit and a little margin for paying taxes.”
However, it was being claimed as fee payments — a subterfuge that could only be used to shield the payments. It would also mean that, whatever attorney-client privilege claims Cohen is maintaining in New York after the FBI raid, Cohen is now the only person claiming a substantive attorney-client relationship with Trump. He has been reduced to little more than a “funnel.”
In removing the glaring conflicts with some prior facts, Giuliani’s new account conflicts with a new set of facts. Giuliani insists that the president did not know about the “details” until 10 days ago. That would be April 23. Conveniently, that was weeks after the president on Air Force 1 expressly denied any knowledge of the payment to Cohen.
However, it would also mean that these details were unknown months after the explosion of this scandal and weeks after he sat down for a high-visibility dinner with Cohen.
Even if the president succeeds in moving to a new position, Cohen does not have the same flexibility. He is stuck in the same place that he was 48 hours ago, but now he is alone. Cohen has repeatedly stated that there was no reimbursement for his payments to Daniels: “Neither the Trump Organization nor the Trump campaign was a party to the transaction with (Daniels), and neither reimbursed me for the payment, either directly or indirectly.”
There is now a growing chasm between Trump and Cohen. The obvious problem for Trump is that if Cohen gets lonely enough, he could find a new friend in Mueller.
The upshot is that the team can still face a campaign-finance allegation after leaving the most dangerous potential witness in an isolated and estranged position. It also means there was a conscious effort to pay Cohen for hush money paid to a porn star days before an election. That is not a material improvement.
After tweeting again this morning, the president made his way to a prayer breakfast. Hopefully, that is not the final option left to him by his legal team. Prayer can be redemptive but, in both life and litigation, “God helps those who help themselves.” None of this is helpful.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University, where he teaches constitutional and tort law. Follow him on Twitter: @JonathanTurley.