Former President Donald Trump is dragging his wife Melania into his legal drama.
That’s because his legal team is publicly arguing that a $130,000 hush-money payment to adult film star Stormy Daniels to buy her silence about their alleged affair days before the 2016 election had nothing to do with the election itself. Instead, the payoff was really about saving Trump from embarrassment—and protecting his marriage.
“It’s not directly related to the campaign,” Trump lawyer Joe Tacopina said in an interview on ABC’s Good Morning America on Monday. “He made this with personal funds to prevent something coming out [that was] false but embarrassing to himself, his family, his young son.”
That “embarrassing” allegation has now launched a criminal probe that appears set to result in the first criminal charge against a former president in U.S. history. Trump has insisted the affair never happened. But Manhattan District Attorney Alvin Bragg is sending strong signals that he’s planning to charge Trump soon over yet-to-be-made-public violations of business and campaign finance law relating to the secretive payment.
Trump’s argument that the money aimed at defusing an “embarrassing” situation, rather than circumvent campaign finance rules, could indeed help him out of his legal jam, legal experts say. But it could also raise awkward questions inside the Trump family home, by prompting a debate over why a guy like Trump would have shelled out so much money to cover up a story that was totally bogus.
This exact dilemma has reportedly prompted Trump to shoot down this idea in the past, despite its legal firepower. Trump’s attorneys told him years ago that he could plausibly argue that having affairs with women and then paying them hush money was just his normal mode of living life, according to reports in Vanity Fair and Rolling Stone. Such a defense would mean there was nothing special about him making a six-figure payout to an adult film star.
Trump’s been unwilling to go there, those reports suggested, for one reason: It would mean confirming to Melania that he regularly sleeps with women and pays them hush money. Yet legal commentators have long seen this line of defense as one of Trump’s stronger potential legal arguments.
“Trump’s best strategy would be to say that he routinely paid off women and that the purpose of paying them was to avoid the embarrassment it would cause for his wife and the rest of his family,” the former federal prosecutor Renato Mariotti told Law&Crime when the case first spilled out into public view during Trump’s presidency.
This month, however, Manhattan District Attorney Alvin Bragg is showing signs he’s preparing to indict Trump in the immediate future. And now, suddenly, as this legal threat looms into view, “embarrassment” is back on the menu.
Trump’s attorney appears to be threading the needle, however, by maintaining the sex never happened, but that Trump was still so concerned about a false allegation that he felt obliged to shell out serious dough to squelch the story.
Bragg hasn’t revealed the exact nature of his potential charges against Trump, and those details may turn out to be both novel and complex. Manhattan prosecutors appear to be preparing a complicated interlocking set of accusations, according to the New York Times.
Daniels received the $130,000 from Trump’s longtime lawyer and fixer, Michael Cohen. Bragg’s team is reportedly considering charging Trump for keeping false financial records related to the reimbursement payments that were later made to Cohen.
New York state law makes it a crime for businesses to keep false records. Yet to make such a crime a felony, rather than a misdemeanor, the records must have been falsified for the purpose of committing some other crime.
That secondary offense could be a campaign finance violation. And that’s where the question of why Cohen paid off Daniels becomes so important. If the payment had nothing to do with the election, then the false records charge gets reduced to a misdemeanor, and suddenly Trump’s in a much better legal situation.
That means Bragg will probably need to tie the payment to the campaign in order to make the case hang together as a serious felony, said Jerry Goldfeder, a veteran election lawyer based in New York.
“The DA is going to have to prove that the payment was in furtherance of the campaign, and that Trump did have criminal intent,” Goldfeder told VICE News, while cautioning that it’s not yet totally clear what kind of case Bragg plans to bring, if any.
Yet such a case would also involve applying New York state law to a violation that occurred during a federal election campaign, and it’s not yet clear whether that unusual use of the criminal statute would survive a challenge from Trump’s legal team.
Cohen has testified that Trump asked him to lie about the Daniels payment to Melania, and apologized to Trump’s wife for doing so. Cohen appeared before the grand jury on Monday in what may be one of the final steps of the probe before Bragg seeks an indictment.
Bragg’s team recently offered Trump the opportunity to appear before the grand jury this week, in what is widely seen as signaling both that the prosecutors are serious about bringing a case and that charges are imminent. But Tacopina said Trump has no plans to appear.