Trump’s Latest Legal Strategy

Nazi Stormtroopers

“Stormtroopers coming in and breaking down his apartment and breaking down his office.” — Description by Rudy Giuliani of the FBI’s raid to obtain Michael Cohen’s documents pertaining to the payment of hush money to Stephanie Clifford, the adult film star known as Stormy Daniels. 

“That’s the Gestapo in Germany. That shouldn’t be the American FBI.” — Former House Speaker Newt Gingrich similarly used a Nazi analogy when discussing Justice Department tactics in the probe of President Donald Trump and his campaign’s possible collusion with Russia. 

Comparing something or someone to Nazis is tempting (if ultimately outrageous). After all, everyone (well, almost everyone) agrees Nazis were evil. It is a simple reduction: Nazis are bad; the FBI acts like Nazis; therefore, the FBI is bad. It is simple, but fundamentally flawed. First, Nazi analogies minimize the evil the Nazis committed:  Imposing a dictatorship on Germany, unleashing the Second World War and brutally occupying much of Europe, and the atrocities of one of history’s most heinous crimes, the Holocaust. Second, Nazi comparisons leave no room for discussion. And, third, calling an opponent a Nazi either means the accuser has lost the argument or has, at best, a flimsy legal case. 

Ernst Röhm

Historical note: Gingrich, at least, has the correct analogy. Stormtroopers were Nazi foot soldiers who battled leftwing opponents on the streets of Germany before the Nazi seizure of power in 1933. In 1921, the fledgling Nazi Party formed the Sturm Abteilung (Stormtroopers in English), usually abbreviated as SA. Stormtroopers donned brown shirts with a swastika band on the left arm. The SA protected Hitler at rallies while fighting Communists and Socialists in the streets. When Hitler seized power, the SA was led by Ernst Röhm, who immediately sought to fuse his organization with the German army. Röhm envisioned himself as head of the nation’s rejuvenated military. Other Nazi leaders feared Röhm and convinced Adolf Hitler that Röhm intended to supplant Hitler as Führer. On June 30, 1934, in what is known as the Night of the Long Knives, Röhm and other SA leaders were murdered by the regime. The SA continued to exist, but as a much weaker organization that was eventually supplanted by the SS, the Schutz Staffel, led by Heinrich Himmler. The Gestapo (an abbreviation of the German for Secret State Police) fell under the administration of the SS, and it conducted raids in the middle of the night, as well as other atrocities. Score one for Gingrich.

Gingrich’s historical accuracy, however, does not make his Nazi analogy palatable. The proclivity of Trump’s defenders to engage in Nazi comparisons may be a sign of the precariousness of Trump’s legal case. Another indication of the president’s legal woes is the continuing flux in his legal team. Lawyers come and go through a revolving door. Right now, Trump’s lead lawyer is Rudy Giuliani, the former mayor of New York City, who described himself in one of a series of interviews on Fox News this week as owing his position to his friendship with Trump. 

Rudy Giuliani. President Trump’s new lead lawyer, appearing on “Hannity” Wednesday evening.

On Wednesday night, Giuliani made news on Fox, claiming the president reimbursed his longtime personal lawyer for the $130,000 payment to Daniels. Cohen said previously the money had come from his personal home equity account, and Trump had denied any knowledge of the transaction. A new team, a new strategy? Or simply a slip of the tongue by the ever-talkative Giuliani? It is hard to tell.

Regardless, no one believed Cohen (a lawyer paying for his client?), and Trump’s lack of acquaintance with the truth made it easy to discount his version. Still, the former mayor’s admission came as a surprise. “That money was not campaign money, sorry. I’m giving you a fact now that you don’t know,” Giuliani told fellow Trump apologist, Sean Hannity. “It’s not campaign money. No campaign finance violation.”

Giuliani appeared confused (or did he not have his story straight?) when describing how Trump had repaid Cohen. One version had the president paying his personal lawyer a monthly $35,000 retainer over several months; another, had the money paid of “law firm funds,” whatever those are. In any event, Giuliani said, there was no violation of campaign finance laws.

Not so fast, Rudy. Experts maintain that how the payment was made has no bearing on its legality. Lawrence Noble of the Campaign Legal Center said, “We still have the same question: What was the purpose of this [money transfer]?… If the purpose of this was to stop [Daniels] from hurting the campaign,” Noble added, “then what you have is Cohen made a loan to the campaign. And it was an excessive loan because lending the campaign money is a contribution. It was an excessive contribution until it’s repaid.”

Rudy Giuliani on “Fox & Friends” Thursday morning.

On “Fox & Friends” Thursday morning, Giuliani inadvertently linked the payment to the campaign. First, he claimed the money was paid for personal reasons, to protect Melania Trump from further embarrassment. Donald Trump, Giuliani maintained, had been hurt personally, not politically, and so had the “first lady by the false allegations.” Then, the president’s lead lawyer said, “Imagine if that came out on October 15, 2016, in the middle of the last debate with Hillary Clinton.” An allegation, even if false, Giuliani was saying, would damage the Trump campaign. So, the former mayor said, “Cohen didn’t even ask. Cohen made it go away. He did his job.”

“He did his job” may go down as one of the more famous political quotes of the young 21st century. But, the statement exonerates neither Cohen nor Trump. The candidate can, of course, make loans to his own campaign. The campaign, on the other hand, cannot take loans without reporting them, even if Trump pays them back later. If that were legal, there would be no point in campaign finance laws. By not reporting Cohen’s loan, if that is what it was, the campaign would be in violation of the law. If Cohen had not been repaid, then he committed a violation by making a contribution above the maximum allowed by law. Either way, a violation occurred.

For his part, the president quickly signed on to the new legal strategy, if that is what it is. “Mr. Cohen, an attorney, received a monthly retainer, not from the campaign and having nothing to do with the campaign,” Trump tweeted, in exceptionally literate English.“The agreement [arranged by Cohen with Daniels] was used to stop the false and extortionist accusations made by her about an affair,” he further tweeted. 

Now we have it! The defense for Trump is to make him the victim. Daniels was extorting the candidate, and so his lawyer paid for her silence. Odds are this defense will not work any better than any other ones, including calling the president’s investigators Nazis.

Posted May 4, 2018

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