Stormy Daniels (Photo by ROBYN BECK/AFP/Getty Images)
On Monday, Donald Trump’s lawyer Joseph Tacopina went on Good Morning America to explain that his client, a man who was notorious for his infidelities even before he got caught on tape bragging about grabbing women by the genitals, did not have sexual relations with that woman, Miss Stormy Daniels. In fact, he went so far as to say that Trump had been a “victim of extortion,” paying the porn star $130,000 to keep quiet about a sexual encounter that never happened to avoid embarrassing his family.
It was merely a coincidence of timing that Trump tried to bury Daniels’s story of their 2006 encounter — and at least two other stories as well — just months before the 2016 election. And thus, the lawyer insisted, the hush money payment cannot be seen as an excessive, undisclosed contribution to Trump’s presidential campaign.
The problem with that theory, aside from being fundamentally ridiculous, is that there are a whole bunch of witnesses who can testify otherwise, including: former National Enquirer publisher David Pecker and editor Dylan Howard, who conspired with Trump and his campaign to “catch and kill” embarrassing stories; Stormy Daniels’s first lawyer, Keith Davidson, who negotiated the hush money agreement; Trump’s former lawyer Michael Cohen, who pleaded guilty to lying to Special Counsel Robert Mueller about the deal, as well as several other illegal tax schemes; and Trump’s former campaign manager Kellyanne Conway, who discussed the payment scheme with Cohen at least once. And every one of those people has testified to the grand jury impaneled by Manhattan District Attorney Alvin Bragg to investigate the payment.
Donald Trump has not testified, although he was invited to do so. But, as the Daily Beast’s Jose Pagliery points out, Trump was not given the automatic grant of immunity provided to grand jury witnesses, indicating both that he is the target of the investigation, and that this process is speeding toward its inevitable close.
There are lots of reasons to be skeptical that an indictment will be forthcoming here, not least of which is that there’s a five-year statute of limitations on most felonies in New York. See also: Alvin Bragg.
But if the DA does indict, the speculation is that he’ll charge Trump with falsifying business records, as well as some other misdemeanor, which would then gross up to a felony. And because the campaign finance violation is the most obvious crime here, Tacopina seems intent on conveying that the $130,000 payment was not made incident to the presidential campaign.
Toward that end, he told Stephanopoulos on Monday that Cohen had pleaded guilty to something which was “not a crime” because “personal use of funds, spending to fulfill a commitment, an obligation, or an expense of a person that would be existing irrespective of the campaign is not a violation.”
And he was still flogging that line last night on Ari Melber’s show, where his performance was nothing short of manic and included grabbing papers out of the host’s hands.
“If all of what you say is true, then why was Trump lying about it and hiding it at the time?” Melber asked, before playing a recording of Trump denying the payoff in 2018 when the Wall Street Journal broke the story. “He lied about it. We all know that?”
At which point Tacopina launched into a bizarre explanation of why a false statement isn’t a “lie” if it doesn’t meet the legal definition of perjury, before insisting that Trump was nobly trying to protect a supposed extortionist:
TACOPINA: Ari, that’s — that’s what you’re going to consider a lie? A lie to me is something material, under oath, in a proceeding.
MELBER: Oh, I didn’t say perjury. I said a lie.
TACOPINA: But that’s not a lie.
MELBER: That’s not a lie?
TACOPINA: Here’s why it’s not a lie … Because it was a confidential settlement. So if he acknowledged that, he would be violating the confidential settlement. So, is it the truth? Of course it’s not the truth. Was he supposed to tell the truth? He would be in violation of the agreement if he told the truth. So by him doing that, he was abiding by, not only his rights, but Stormy Daniels’s rights.
Trump’s former lawyer Rudy Giuliani famously confirmed on air that Trump knew about the reimbursement checks, if not the original payment.
“When I heard Cohen’s retainer of $35,000 when he was doing no work for the president, I said that’s how he’s repaying — that’s how he’s repaying it, with a little profit and a little margin for paying taxes for Michael,” Giuliani babbled to Sean Hannity in 2018, adding, “He didn’t know about the specifics of it as far as I know. But he did know about the general arrangement that Michael would take care of things like this.”
Giuliani went on to say that he himself was regularly in the habit of sua sponte making hush money payments to his clients’ sexual partners: “I take care of things like this for my clients. I don’t burden them with every single thing that comes along. These are busy people.” And moments later, Greenberg Traurig decided that it could do without the services of America’s Mayor.
But Tacopina went even further than that, apparently admitting to Melber that Trump was aware of the original payment to Daniels: “Obviously he knew about it, but what he decided to do was not violate the confidentiality clause and provision of that agreement. Which was the right thing to do.”
Tacopina ended the interview by repeating his claim that there was no campaign finance violation because Trump used “personal funds” to make “a donation to his campaign by himself.” Or possibly not to make a donation to his campaign, if you buy the alternate theory that, after ignoring her for 10 years, Trump would have paid off Daniels in October of 2016 even if he hadn’t been running for president. All of which makes complete sense if you ignore the fact that Trump is being investigated for falsifying a business record because Cohen was reimbursed used Trump Organization money. And that Trump used a straw man to make the undisclosed donation. Also it helps if you’re a complete idiot.
On the bright side, Tacopina never worked for Greenberg Traurig, so he can’t be unceremoniously shoved out the door and exiled to leak hair dye on television and rant in the parking lot of a Philadelphia landscaper about a stolen election.
Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.
