Americans have heard the story before: A lurid tale of a presidential candidate accused of arranging hush-money payments to conceal an alleged affair.
But if former President Donald Trump is indicted by a Manhattan grand jury in connection with a pre-election payment to porn star Stormy Daniels, the case of another politician – two-time Democratic presidential candidate John Edwards – offers clues to the defense Trump is likely to mount.
More than a decade ago, Edwards beat charges that he had broken federal campaign finance laws as part of an elaborate scheme that involved two of his donors supplying nearly $1 million in secret payments to hide his pregnant mistress during the 2008 presidential campaign.
Edwards’ lawyers contended at trial – as Trump’s legal team now argues – that the payments did not violate federal election law because they were aimed at shielding his family from pain and embarrassment rather than trying to conceal an extramarital affair from voters to further his political ambitions.
“It’s the most closely available precedent for this situation, and that’s not a good track record for someone looking to bring a similar case,” said Steven Friedland, an Elon University law professor who attended much of Edwards’ six-week federal trial in Greensboro, North Carolina in 2012.
It’s not clear what charges, if any, the Manhattan district attorney Alvin Bragg and the grand jury will pursue, stemming from a $130,000 payment made to Daniels just days before the 2016 general election. And legal experts say tying a state criminal charge to federal election law appears to be untested.
But Trump’s allies have begun to draw parallels to Edwards’ case, which resulted in a high-profile loss for the Justice Department’s Public Integrity Division, then headed by Jack Smith. (Smith now serves as the special counsel overseeing federal investigations into parts of the January 6, 2021, insurrection and the retention of classified documents at Trump’s Mar-a-Lago estate.)
In the 2012 federal campaign-finance trial, the jury acquitted Edwards of one charge of accepting illegal campaign contributions and deadlocked on five remaining counts, including that he made a false statement to the Federal Election Commission by not disclosing on his campaign filings the donors’ spending to hide the mistress.
In the end, the Justice Department decided not to retry Edwards.
Edwards, who was the Democratic vice presidential nominee in 2004, retreated from national politics after the case concluded. He now practices law in North Carolina.
‘It’s not a campaign finance violation’
Trump, who is waging his third presidential bid, has steadfastly denied an affair with Daniels, whose legal name is Stephanie Clifford, and he has asserted that “NO crime has been committed.”
The former president’s lawyer, Joe Tacopina, has publicly portrayed the $130,000 payoff on the eve of the 2016 general election as responding to “extortion” by the adult film actress, who was attempting to go public with claims of a 2006 affair with Trump. He also has sought to draw a distinction between the payment to Daniels and money derived from political donors.
“He made this with personal funds to prevent something from coming out, false, that is embarrassing to himself, his family, his young son,” Tacopina said earlier this month on ABC’s “Good Morning America.”
“If the spending would exist irrespective of the campaign, it’s not a campaign law violation,” Tacopina added on MSNBC. “End of story.”
Any criminal case that seeks to link the hush-money payment to a campaign finance violation would turn on whether it was intended to hide the matter from the voting public.
In Edwards’ trial, defense lawyer Abbe Lowell painted the former North Carolina senator as a “bad husband” who cheated on his wife, Elizabeth, as she battled cancer that would claim her life in 2010.
But that didn’t make Edwards a criminal, he said.
“This is a case that should define the difference between someone committing a wrong and someone committing a crime,” Lowell said at the time.
Notably, the jurors in the Edwards trial never heard from the two donors who funded the secret payments. Banking heiress Rachel “Bunny” Mellon, who provided more than $700,000, was too frail at 101 to appear in court; the other, Fred Baron – a Texas lawyer and Edwards’ one-time finance chairman – had died before the trial began.
And the defense challenged the credibility of the prosecution’s star witness, Andrew Young – a one-time Edwards aide who said he falsely claimed paternity of the child that Edwards fathered at the politician’s behest.
Any charges involving the Daniels payoff likely would center on evidence from Trump’s former lawyer and fixer, Michael Cohen, who arranged the payments to Daniels in late October 2016 and testified recently before the Manhattan grand jury.
Trump and his allies have said Cohen, who served more than a year in prison after pleading guilty in connection with the hush-money scheme and other financial and tax crimes, is a convicted perjurer who cannot be trusted. And last week, Cohen’s one-time lawyer Robert Costello, testified before the grand jury at the request of Trump lawyers as part of an effort to chip away at Cohen’s reliability as a witness.
Young’s credibility was “front and center” at the Edwards’ trial and “that will be the case here with Michael Cohen,” noted Elon University’s Friedland.
For his part, Cohen has sought to put Trump at the center of the payoff scheme, telling a congressional committee in 2019 that his former boss directed him to take out a home-equity line of credit and use that money to obtain Daniels’ silence in order to “prevent damage to his campaign.”
Cohen was reimbursed in installments after submitting invoices claiming the bills were part of a “retainer agreement.” Trump’s real-estate company “falsely accounted for those payments as ‘legal expenses,’” federal prosecutors wrote in Cohen’s 2018 sentencing memo.
Conservative legal commentators long have maintained that it was a stretch to have Cohen plead guilty to a crime in the payoff scheme in the first place.
“At the very least, the law is murky about whether paying hush money to a mistress is a ‘campaign expense’ or a personal expense,” Brad Smith, a former Republican member of the Federal Election Commission, wrote in a Washington Post op-ed at the time.
Other big hurdles
CNN has previously reported that Manhattan prosecutors are weighing whether to charge the former president with falsifying business records of the Trump Organization over how the reimbursements to Cohen were characterized.
Under state law, falsifying business records is a misdemeanor. To bring a more serious charge, prosecutors would have to demonstrate it was carried out to advance or conceal another crime, such as breaking election law, legal experts say.
But policing criminal violations of federal campaign statutes is the purview of the US Department of Justice. And seeking to link federal election law to a potential violation of state law would be difficult, said Richard Hasen, an election law expert and law professor at the University of California-Los Angeles
“It is not a violation of state law to not follow federal law, so it’s hard to see how that federal charge lines up with the state charge,” Hasen said.
Despite the core similarity between the Edwards prosecution and what Trump could face, “the difference here is that we have a state prosecutor bringing the charge, as opposed to a federal prosecutor in the John Edwards case,” said Jerry H. Goldfeder, a veteran election and campaign-finance lawyer at Stroock & Stroock & Lavan.
“I believe it’s untested for a state prosecutor to bring a case against a federal candidate,” he added. “But we shall see how it turns out.”