In both criminal and Olympic trials, routines often seem a combination of the performances of prior individuals. Skaters are judged on whether they can do a “Biellmann spin” after a “triple Lutz.” Those are dangerous moves to be sure, but nothing like the routine facing President TrumpDonald TrumpFormer Sen. Heller to run for Nevada governor Overnight Defense & National Security — Milley becomes lightning rod Joint Chiefs Chairman Milley becomes lightning rod on right MORE in the wake of new allegations of affairs and payoffs. If he is not careful, he could soon be trying an “Edwards” with a “double Clinton twist.”
The president is facing expanding scandals involving alleged affairs with a former porn star and a former Playboy bunny. Up until now, these scandals have been more salacious than legal. However, there is a new alleged pattern emerging that could present a real threat to Trump — a pattern that led to serious legal problems for a prior president and a prior presidential candidate. While I believe that the president can avoid any criminal charge, he will have to stick this landing with care. Unlike the vague references to some crime of Russian “collusion,” there is a criminal allegation emerging in these two alleged affairs.
The routine setup
Former porn star Stormy Daniels, whose real name is Stephanie Clifford, gave an interview in 2011 to In Touch Magazine detailing an affair with Trump that began shortly after Melania TrumpMelania TrumpFormer aide sees Melania Trump as 'the doomed French queen': book If another 9/11 happened in a divided 2021, could national unity be achieved again? Former Trump aide Stephanie Grisham planning book: report MORE gave birth to their son, Barron. Trump’s personal lawyer, Michael Cohen, reportedly threatened to sue the tabloid magazine if the story ran. The threat appears to have spooked the magazine, which buried the story.
As the implications of the Clifford scandal deepen, Ronan Farrow wrote a story in the New Yorker on another alleged affair. This one also occurred during the same period and involved “Playmate of the Year” Karen McDougal. Her account is also quite detailed (and fits a similar pattern) and involved contemporarily written notes. McDougal alleges that Trump friend and owner of the National Enquirer, David Pecker, paid her $150,000 for exclusive ownership of her story. The payment barred McDougal from publicly revealing the affair. The National Enquirer, which is not known for its restraint in publishing celebrity scandals, buried the story and former staffers have alleged that Pecker coordinated such decisions with Trump.
First the ‘Edwards’
The $130,000 payment to Clifford and the $150,000 payment to McDougal could present a serious legal threat to Trump. The confirmation of this money coming from his lawyer and his friend could be viewed as a circumvention of campaign finance laws. Just ask John Edwards. The former Democratic presidential candidate was hammered after the disclosure that he not only had an affair with filmmaker Rielle Hunter but also sired a child with her. He at first denied the affair, as did Hunter. Later it was revealed that Fred Baron, the Edwards campaign finance chairman, was giving money to Hunter, but he insisted it was his own money and without the knowledge of Edwards. Andrew Young, an Edwards campaign aide, also obtained funds from heiress Rachel Lambert Mellon to pay to Hunter.
Ironically, the scandal was revealed by the National Enquirer. This use of third-party payments was viewed as a circumvention of campaign finance laws since the payments were designed to bury an election scandal. Edwards was indicted in 2009 on six felony charges. In 2012, he would ultimately be found not guilty on one count while the jury deadlocked on the other five.
While some, including myself, questioned the basis for the Edwards indictment, it would be willful blindness for the Trump team to ignore the obvious analogies to the current controversy. Where Edwards had the late heiress “Bunny” Mellon and his campaign manager, Trump allegedly had Pecker and his personal counsel. Both payments occurred at the same time as Edwards in the midst of a presidential run.
Now the ‘Clinton double twist’
That brings us to Bill ClintonWilliam (Bill) Jefferson ClintonBusiness coalition aims to provide jobs to Afghan refugees Biden nominates ex-State Department official as Export-Import Bank leader Obamas, Bushes and Clintons joining new effort to help Afghan refugees MORE, whose undoing came not from his affairs. Those allegations did not present a legal threat until Clinton was forced into a deposition in the Paula Jones civil lawsuit. In that deposition, Clinton lied under oath about his relationship with White House intern Monica Lewinsky. He would continue to lie publicly about not having sex with “that woman.” Clinton was ultimately impeached based on that perjury. I was one of the constitutional experts called to testify in the House hearings. While I voted for Clinton, I testified that such perjury would clearly constitute a high crime and misdemeanor for purposes of impeachment.
So here is the danger: Given the Edwards prosecution and the pending Common Cause lawsuit, there is an obvious basis for alleging a possible crime related to these payments under the campaign finance laws. I still question that interpretation but there is case law to support it. Special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE would be allowed under his mandate to ask about the payments. Trump has denied any affair with either woman through White House staff. As a precursor to asking about the payments, he could be asked about the affairs under oath. If Trump lies under oath, it would be an indictable and an impeachable offense.
None of this means that Mueller wants to steer his investigation into the sordid affairs of a porn star or a Playboy bunny. It also does not mean that an Edwards charge is a good use of federal effort and money. Just as I objected to the Edwards charges, the connection to the campaign finance laws for Trump remains a bit thin. The concern is that any effort to protect a candidate from scandal could be monetized or converted into a campaign contribution under this theory. It was clearly not a compelling claim for the Edwards jury. Putting ethical concerns aside, both Cohen and Pecker can note that (unlike the figures in the Edwards case) they did not hold any campaign position.
However, the allegation is directly linked to the election campaign that is at the heart of his mandate. Moreover, Mueller threw every possible charge against prior Trump figures in the Michael Flynn, George PapadopoulosGeorge Demetrios PapadopoulosTrump supporters show up to DC for election protest Trump pardons draw criticism for benefiting political allies Klobuchar: Trump 'trying to burn this country down on his way out' MORE, Paul ManafortPaul John ManafortDOJ investigating one-time Trump campaign adviser over alleged ties to Qatar: report Foreign lobbyists donated over M during 2020 election: report Former Mueller prosecutor representing Donoghue in congressional probes: report MORE and Rick Gates indictments. Some of those charges, particularly Flynn’s alleged false statement, were marginal at best. The charges against Manafort and Gates were well removed from both the campaign and Trump. In other words, Mueller has not shown particular restraint thus far in pursuing any or all charges.
I have been critical of the repeated claims of a “collusion” crime with Russians due to the weak legal and factual foundations for a charge. However, this allegation would be anchored in not just a clear criminal provision but two prior cases. For a White House known for self-inflicted wounds, the situation could not be more precarious as the White House issues categorical denials. There are real criminal charges possible in such claims and the trip wires are right under foot for the president.