Rudy Giuliani speaks at a Federalist Society convention in Washington in 2007. Credit: Diego M. Radzinschi/ NLJ

Rudy Giuliani was defiant Wednesday night on Sean Hannity's Fox News program, telling the host something he did not know: President Donald Trump repaid his lawyer Michael Cohen for his $130,000 payment to adult film star Stormy Daniels.

“They funneled through a law firm, and the president repaid it,” Giuliani said. Up until that point, Trump had denied knowing about the payment, which silenced Daniels, whose real name is Stephanie Clifford, from talking about her alleged affair with Trump. Clifford, represented by Michael Avenatti, is suing Trump over that nondisclosure agreement.

Giuliani's acknowledgement set off a firestorm of controversy, raising questions about whether Trump lied to the public about denying knowing about the payment and whether the payment itself violated campaign finance laws. Giuliani, who's on leave from Greenberg Traurig to work for Trump, said Trump repaid Cohen, a Trump Organization lawyer, over several months. Giuliani and Trump both denied the money was campaign-related.

Here's a roundup of what lawyers are saying about Giuliani's remarks:

➤➤ Rick Hasen, election law specialist at the University of California, Irvine School of Law:

“If what Giuliani says is true, and if the payments were made to help the campaign and not [just] to help Trump personally, the campaign may be implicated in illegal activity.” [Slate]

➤➤ Charles Spies, leader of Clark Hill PLC's political law practice:

“Mayor Giuliani's new comments about reimbursement have no relevance to the election law allegation about Mr. Cohen's payment. As long as the payment was made to protect the Trump Organization and/or Mr. Trump's business and reputational interests, then it is not an election law violation. The 'Trump' name is a valuable asset and he apparently has a pattern (outside the campaign context) of paying to protect that asset, meaning you can not presume the payment was for the purpose of influencing an election.”

➤➤ Lawrence Noble, general counsel at Campaign Legal Center:

“If the purpose of this was to stop [Daniels] from hurting the campaign, then what you have is Cohen made a loan to the campaign. And it was an excessive loan because lending the campaign money is a contribution. It was an excessive contribution until it's repaid.” He added: “Giuliani suggesting it was funneled through the firm as legal fees is evidence of an intent to hide the source, which could make it knowing and willful, which is criminal.” [The Washington Post]

➤➤  William Canfield, a former general counsel to the National Republican Senatorial Committee and two-time chairman of the American Bar Association's standing committee on election law, said the payment “most likely” would not be deemed a campaign finance violation.

“[One], even if the payment could be deemed by the FEC general counsel as an 'expenditure' that was made in furtherance of a campaign purpose, the funds appear to have come from the personal bank account of candidate Trump and a candidate is allowed to expend unlimited amounts of personal money to further a campaign purpose; and, [two] while some have argued this morning that the payment resulted in the filing of a false or inaccurate FEC report, by the Trump campaign, because the funding was not reported, that presumes that the campaign's treasurer knew about the funding before the FEC report was filed and filed it never the less … highly unlikely. All the treasurer need do at this point is file an amendment to the previous report.”

➤➤ Paul S. Ryan, vice president of policy and litigation at Common Cause, the watchdog group that filed a complaint with the Federal Election Commission over Cohen's $130,000 payment:

“Apparently Giuliani said this morning on “Fox & Friends”: 'Imagine if that came out of Oct. 15, 2016, in the middle of the last debate with Hillary Clinton …' And then said: 'Cohen made it go away. He did his job.' But the payment wasn't related to the campaign???” [Twitter]

➤➤ Heidi Abegg, senior counsel at Webster Chamberlain & Bean:

“Just because something is related to the campaign (and these days, one can make the argument that almost anything could be considered “related” to a campaign) or occurs close in time to an election, does not automatically make it a campaign expenditure. Would this expense have existed irrespective of the campaign? If so, then the campaign could not have made the payment without violating the personal use prohibition. The government made the argument in the Senator [John] Edwards case that basically, anything that enhances a candidate's reputation or protects that reputation is campaign-related. That argument is being made by some in this matter. However, I don't think one can easily dismiss the argument here that the expense would have existed irrespective of the campaign.”

➤➤ Norm Eisen, chairman of Citizens for Responsibility and Ethics, which filed complaints to the U.S. Department of Justice and U.S. Office of Government Ethics about the Daniels payment:

➤➤ And then there's George Conway, the Wachtell, Lipton, Rosen & Katz lawyer and husband of White House aide Kellyanne Conway. George Conway, of counsel in the firm's litigation department, on Thursday tweeted a link to Federal Election Commission guidance he clearly viewed as applicable to the $130,000 payment and Trump's reimbursement. According to the guidance, any gift or loan meant to influence an election is “considered a contribution from the donor to the campaign, subject to the per-election limit and reportable by the campaign.” Conway occasionally has used his Twitter account to rebut some statements or positions of Trump administration officials.

 

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