Like a ghost from the past, the story of how a former Democratic Party rising star beat federal campaign finance charges over hush money payments has become a calling card for former President Donald Trump‘s defense.
If Trump were to be indicted by a Manhattan grand jury in connection to preelection hush payments to porn star Stormy Daniels over an alleged affair, legal and campaign finance experts have speculated a case surrounding two-time Democratic presidential candidate John Edwards may offer insight for Trump’s legal strategy.
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Prosecutors in 2011 alleged Edwards solicited nearly $1 million from wealthy donors to hide his affair with a mistress who carried his child to prevent damage to his reputation during his 2008 presidential bid. Although Edwards ultimately admitted to the affair, he was acquitted by a jury in 2012, finding him not guilty of one count of receiving illegal campaign donations but deadlocked on five other charges the Justice Department subsequently dropped.
“While the cases arise under different laws, state vs. federal, the theory of the Edwards case that ‘hush money’ constitutes a campaign contribution is legally flawed,” Stanley Brand, an election law expert, told the Washington Examiner.
Such a case surrounding hush payments hadn’t arisen to similar high-level prominence in the years following Edwards’s acquittal — not until Trump’s March 18 claims that he anticipated his arrest in connection with a $130,000 payment his former attorney Michael Cohen made to Daniels, whose real name is Stephanie Clifford, in the weeks leading up to his 2016 presidential campaign.
Reports in recent weeks have indicated Manhattan District Attorney Alvin Bragg is seeking to couple a misdemeanor charge over an alleged falsification of business records with a campaign finance violation to achieve a felony charge. However, legal experts told the Washington Examiner that any such attempt would be an uphill battle.
“It is incredibly difficult to show that the payments were for election purposes rather than for other purposes,” Michael O’Neill, assistant general counsel at Landmark Legal Foundation, told the Washington Examiner.
Cohen sought reimbursement from the Trump Organization for $180,035 — $130,000 for the payment with an extra $50,000. That later got bumped up to about $420,000 disbursed over 12 months, according to court records. Business records for the reimbursement scheme were listed as “legal expenses,” which partially fueled claims of falsification.
Trump was president at the time the Justice Department went after Cohen for the payments. The attorney ultimately pleaded guilty in 2018 to a litany of charges, including a campaign finance violation.
One significant difference between the two cases is that Trump is being investigated by New York state prosecutors, while Edwards was charged by federal prosecutors.
Another major contrasting point is that Trump has denied the alleged affair and wrongdoing broadly and has characterized the investigation as a “witch hunt.” Trump also claimed he was unaware of the payment, though subsequent audio that surfaced showed Cohen briefed him on a similar payment scheme made to former Playboy star Karen McDougal to stymie her from going public with their alleged affair.
But Brand argued there is “no legal precedent” for a prosecutor to view the definition of campaign contribution so broadly as to lump the misdemeanor charges to achieve a felony count.
“To allow this theory to prevail could render a variety of expenditures campaign related despite their indirect and attenuated connection to a campaign,” Brand added.
Trump attorney Joe Tacopina was interviewed on NBC’s Meet the Press on Sunday and brought up Edwards’s case, citing the Justice Department’s declination to pursue the case after it was “openly dismissed.”
“The distinction here is so vast, and it’s clear to anyone,” Tacopina said, calling Bragg’s investigation a “weaponization of the prosecutor’s office.”
Meanwhile, some legal experts suggest the evidence known to the case could warrant a misdemeanor at best.
“It is not clear exactly what the theory is to move it to a felony,” Rick Hasen, a professor at the UCLA Law School, told the Washington Examiner, noting he’s heard an array of possibilities, “some of which may be preempted by federal law.”
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“You cannot make it a state crime to violate a federal campaign contribution limit, for example,” Hasen added, noting the next step in assessing Trump’s legal perils will be to “wait and see what the ‘other crime’ might be and if the DA can point to other similar instances of engaging in this kind of enhancement.”
The Manhattan grand jury concluded its work in the investigation this week, according to people familiar with the matter, making it unclear as to the timing of any potential charges against the former president.
