Opinion

If Trump Really Did Have ‘Extramarital Affair Slush Fund,’ It Would Actually Help His Legal Case

Stormy Daniels could be one of many women paid off from a Trump slush fund, and this fact could actually help Donald Trump. Literally nothing could be more 2018.

Wait, there was a whole slush fund?

Well, that’s what Daniels’ lawyer, Michael Avenatti is saying. Commenting on Rudy Giuliani‘s recent statements, he told ABC’s George Stephanopoulos Sunday night, “The president had effectively an extramarital affair slush fund that was administered by Michael Cohen.”

And TBH, it sure looks like Avenatti may be right.

We’ve already heard Giuliani confirm that Michael Cohen did pay Stormy Daniels $130,000, albeit while clarifying that Trump “didn’t know about the specifics of it.” Giuliani has consistently painted the picture of Cohen as Fixer, who would make such payments out of a retainer fund so as not to burden his very busy clients with such trifles.

On Sunday night, Stephanopoulos asked Giuliani whether Cohen might have paid off women other than Stormy Daniels on behalf of Donald Trump. Giuliani, characterizing the $130,000 as merely “a nuisance payment,” answered :

I have no knowledge of that, but I would think if it was necessary, yes. [Cohen] made payments for the president or he conducted business for the president.

So that’s kind of a big deal. The president’s lawyer is admitting that his understanding of his client’s finances would support an inference that hush-money payouts were a regular thing.

This isn’t the only time we’ve heard about the possibility of multiple payouts, either. Kellyanne Conway jousted with Jake Tapper on CNN’s State of the Union, and disclaimed personal knowledge of any payouts, but left herself a conspicuously large escape hatch.

If there had been other payouts, Conway said, “they didn’t cross my desk as campaign manager.” Conway clarified her role as an advisor and argued that she only has, “limited visibility into what Mayor Giuliani is talking about.” In other words, “slush funds are for Michael Cohen, not me, to worry about.”

And yes, all this sounds incredibly shady. But there’s nothing necessarily illegal about maintaining a slush fund as a private citizen. Individuals and businesses are free to save for rainy days, self-inflicted or otherwise, so long as they comply with applicable laws regarding use, reporting, and taxation of those funds. Buying someone’s silence might feel icky, but also isn’t per se illegal.  Sidebar: there’s federal legislation pending that would outlaw slush funds financed by government officials, so Trump may want to revamp his practices before that gets passed.

The real irony, though, is that for Donald Trump, the existence and ongoing use of an extramarital affair slush fund might actually help him in an arena in which he faces serious legal exposure. As my Law & Crime colleague Ronn Blitzer discussed in detail, a $130,000 payment with funds financed by Cohen’s home mortgage would likely be considered an in-kind campaign contribution that far exceeds the $2,700 legal limit. However, not all transactions a political candidate makes would be considered “campaign contributions”—just those that were done for the purpose of benefitting a campaign.

This means Trump could avoid liability for campaign violations if he successfully argued that the Daniels payout had been made for some reason other than advancing his political fortune. Obviously, that’s an enormous “if,” but the law puts great stock in behavioral patterns. If Cohen regularly made similar payments out of the same fund for similar purposes, that would indeed support an argument that the Daniels payout is nothing more than business as usual. The more women, the more payouts, the more credible such an argument becomes. And since Michael Avenatti appears to confirm that a pool of women have hush-money stories like his current client’s, such a Trump defense may not be so far-fetched. One of the most damning facts for Trump has been that the Daniels payout occurred just a few days prior to the election; again, though, if that payout were simply one in an ongoing series, the timing doesn’t seem nearly as politically-motivated.

Viewed in such a light, perhaps Rudy Giuliani isn’t quite the bumbling buffoon he appears to be these days. Michael Avenatti called Giuliani’s appearance an “absolute, unmitigated disaster,” and said, “what we witnessed by Rudy Giuliani may be one of the worst TV appearances by any attorney on behalf of a client in modern times.”

Giuliani, who is apparently still getting up to speed with the details of his new client’s dealings, has managed to make one thing perfectly clear: to Donald Trump, the Stormy Daniels payout was NBD. If that means Stormy is the tip of the slushberg, the case against Trump for federal campaign law violations just got a little harder to prove.

[Image via Ethan Miller/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos

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