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This May Be Trump’s Best Legal Strategy Right Now, and it Necessarily Hurts Melania


Could it be that President Donald Trump‘s best legal strategy heading forward is to admit that, yes, he paid off Stormy Daniels and Karen McDougal to silence them about sexual relationships, and, yes, this is completely normal and routine in his universe?

Legal observers say that this might not be a bad strategy. Actually, they say it might be a “good strategy” or the “best strategy” for Trump to do whatever he can to distance himself from committing campaign finance violations to influence the 2016 election — even if that’s admitting to a host of unsavory things at the First Lady’s expense.

The commentary comes after a Vanity Fair piece was published on Monday. Reporter Gabriel Sherman said Trump spent the weekend “screaming” at people over the phone and is rejecting an “intervention” by advisors. In the story, there are more than a few attention-grabbing lines about Trump’s legal strategy, but this one stood out the most:

After Cohen effectively named Trump an unindicted co-conspirator in campaign-finance crimes with the payments to Stormy Daniels and Playboy Playmate Karen McDougal, Trump’s public posture was that the payments weren’t crimes. Privately, according to two sources, Trump attorneys suggested that a strategy for dealing with the issue could be for Trump to admit to having affairs with women and paying hush money to them for years. That way, he could assert that the payments to Daniels and McDougal were normal business—not campaign donations meant to influence the 2016 election. Trump, according to the sources, rejected this advice [emphasis ours]. “It was because of Melania,” one source said.

Former federal prosecutor Renato Mariotti told Law&Crime that Trump’s “best strategy” would be along the lines of what Democratic Party rising star John Edwards did years ago.

“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. This is roughly what John Edwards did,” he said. “The purpose is to contest whether the payments were, in fact, campaign-related.  That’s what the government must prove.”

National security lawyer Bradley P. Moss agreed that this is a “pretty good legal strategy.”

Law&Crime followed up with Moss and he said that Team Trump must counter the government’s contention that the candidate was trying to influence the election by illicitly silencing women through in-kind campaign contributions.

“From a strictly legal perspective, the best argument the Trump team has for why his actions do not run afoul of the campaign finance laws is that the evidence doesn’t support the idea that he was trying to influence the election by hiding the information,” he said. “By admitting to a pattern of past affairs and hush payment agreements to keep them quiet, the Trump team could assert that the McDougal and Daniels deals were just par for the course and something he would have done whether it was in the midst of the election season or not.”

Moss said that this is a “Do the best you can with a bad situation” type of argument. He, too, referenced John Edwards, but drew a sharp distinction between that case and this one.

“The evidence here is far stronger and more compelling than what prosecutors had when they pursued similar charges against John Edwards,” Moss added. “The timing of the payments and the obvious fear of impending media exposure absent those payments fills a critical gap that wasn’t existing in the Edwards case.”

Law&Crime Network host and former head N.J. prosecutor Bob Bianchi says he has argued that this could be the path forward for Trump for months, but that the strategy might now be “stale” in light of recent events.

“He could have said that payments were close to election and that he wanted to stop those motivated to hurt him for election by not putting this out there to protect his wife and children from the embarrassment. That is, for personal reasons only,” Bianchi said. “In other words, it was not to skirt campaign laws, but to avoid his family from being embarrassed. The fact he did this for years, supports that theory.”

Then comes the caveat.

“That said, the Cohen tape tells a different story. It was very campaign orientated and the shell game to finance it, and lies that repayment were for legal fees, are a problem,” he added. “To me, the evidence is compelling he knew what he was doing was illegal.”

Bianchi is referring to a tape in which Cohen suggested paying McDougal in cash.

“As his lawyer, I would tell him NOT to say anything about this,” Bianchi said, noting that if other evidence unearths “more lies” while Trump and others face criminal liability this would be harmful.

“In the end, the sage legal advice is always (innocent, or not) to remain silent,” Bianchi concluded. “It is about as ‘golden’ a rule as there is in the law. I would advise the President to follow it!”

The interesting thing here is that Vanity Fair says, on the one hand, that Trump wouldn’t do what his attorneys have privately suggested for Melania Trump’s sake. On the other hand, caring less about how she feels is a better path, legally speaking.

Instead, a “former official who’s in frequent contact with the White House” told Vanity Fair that Trump is recoiling into a shell.

“This is back to being a one-man show, and everyone is on the outside looking in,” that source said.

Of course, this is all being reported after no good, very bad week for Trump.

Former Trump campaign chairman Paul Manafort was found guilty; former Trump personal attorney Michael Cohen pleaded guilty and said Trump “directed” him to commit campaign finance violations; National Enquirer CEO David Pecker and Trump Organization CFO Allen Weisselberg both took immunity deals as part of the Cohen probe in the Southern District of New York (SDNY).

The latter three are connected by virtue of their involvement in the SDNY’s investigation of Cohen, who pleaded guilty to bank fraud, tax fraud and campaign finance violations.

Those granted immunity will very likely only have to give the feds relevant information pertaining the Cohen probe, but the details of the immunity deals remain unknown.

[Image via Chris Kleponis-Pool/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.