The key legal question about the Stormy Daniels payment

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• Judy Woodruff:

  As we reported earlier, Rudy Giuliani's comments to various media outlets last night have created a new legal headache for his main client, President Trump.

  We take a closer look at the legal questions the statements raise now with John Carlin. He was a longtime Justice Department official and federal prosecutor, and now works in private practice. And Rick Hasen, he's an election law expert and a professor at the University of California, Irvine, School of Law.

  And, gentlemen, we welcome both of you back to the program.

  Rick Hasen, I'm going to start with you.

  We just heard a few minutes ago in that piece we put together Rudy Giuliani tell the anchors at FOX News, he said there was no campaign violation, everything was done properly. How do you see it?

• Rick Hasen:

  Well, I think it's a really open question.

  Right now, what it looks like is that Michael Cohen gave a loan to Donald Trump. And if that was a campaign-related loan, then that had to be reported on campaign finance forms. And each time the loan was paid back, that payment had to be put in there. It's all going to turn on, what did Trump know, when did he know it, and was this campaign-related?

  Was the motive to help the campaign or was the motive to help Trump personally? So while we don't know enough to know whether or not there's a campaign finance violation, there's certainly enough to investigate here. And Giuliani has made things, I think, much worse for Donald Trump right now.

• Judy Woodruff:

  And in terms of a reason, we heard Rudy Giuliani say at one point it was connected to the campaign date, but at another point in the interview, he said it was to spare President Trump and his wife embarrassment.

• Rick Hasen:

  Right. Well, it could have been both those things, but the timing, coming just before the election, just before Stormy Daniels was supposed to be on television talking about the affair, that's some circumstantial evidence it was campaign-related.

  And it might be that when the U.S. attorneys went and seized evidence in — from Cohen's offices, they were looking for evidence of motive. Was this more about Wisconsin or was it more about Melania? I think we don't know that yet.

• Judy Woodruff:

  So, John Carlin, there were so many parts of what Rudy Giuliani had to say, but I want to ask you about his comment where he said, this was — he said, this was a private contract between two parties known as a nondisclosure agreement, an NDA. He said these agreements are very common among celebrities and people of wealth.

  Is that true? Are these kinds of payments done all the time?

• John Carlin:

  Well, there are so many aspects of this current investigation that seem unusual, to say the least, one of which is the public discussion and disarray and chaos in The legal team, in the way that the legal team often doesn't seem to be matching up with what the client is saying, which is never ideal when you're in a defense situation.

  And you contrast that with the Mueller and his prosecution team. They never speak on the record. They never speak to the press. When they do speak, it's through official court filings and documents, and they're running this investigation by the book.

  And, remember, outside the daily news is a serious investigation about a foreign power trying to undermine our democracy. And it's all the more important that we get to the bottom of that, as we head towards another election cycle today.

  We just heard news today that a state election might be attacked through a cyber-attack. We have got to get prepared.

• Judy Woodruff:

  Well — but, again, back to what Rudy Giuliani was saying, and this on the heels, of course, a few weeks ago the FBI raid, going into the office and home of the president's former lawyer, Michael Cohen, does it look to you as if — I mean, again, we're speculating here — what Rudy Giuliani was trying to do was clean up some of this, because they know the FBI has taken material from Cohen's office?

• John Carlin:

  Well, trying to avoid speculation, but, at times, they have attacked the search warrant on Cohen's offices as something that was inappropriate or done through the Mueller special counsel investigation,.

  And they're different. What we have learned to date is that, in the special counsel investigation, they apparently uncovered evidence showing that there was crime — there were crimes committed, and those crimes were sufficiently serious that the acting attorney general, Rod Rosenstein, said they need to be investigated by an independent prosecutor's office in the Southern District of New York, which is legendarily independent, hard-charging prosecutors.

  And what it looks like is, they found serious evidence of crimes that led to not only a search warrant of attorneys' offices and seizure of materials, but also they put in that filing seizure of his e-mail. That's not an easy standard to meet.

  So it does seem like, because of that, there's a lot of concern that, as they uncover the crimes that were — that they are investigating there, that it's somehow going to lead back to the president and his legal team.

• Judy Woodruff:

  Again, so many strands. I know the Washington Post was reporting today that the president had been advised by Rudy Giuliani and perhaps others not to have any contact with Michael Cohen.

  And then, of course, NBC was reporting earlier in the day that the FBI was eavesdropping. And they modified that later to say the FBI was monitoring the…

• John Carlin:

  That's a significant — yes.

• Judy Woodruff:

  … phone calls going into Cohen's office, and that there may have been a call with the White House.

  Back to you, Rick Hasen. We are trying to understand here whether laws might have been broken or not. So, as somebody who understands election law, what more information do you need to know? You mentioned a minute ago motive. What more do you need to know to understand whether the law was violated or not?

• Rick Hasen:

  Well, so, once we know when Trump knew what he knew, if it was during the campaign period, or even now, because he's running the 2020 campaign, the main question is going to be, was this campaign-related?

  And that's a motive question. This came up in the John Edwards prosecution, Senator John Edwards also receiving payments for a mistress. And he argued they were personal, not campaign-related. So, how do you get evidence of motive?

  You can infer circumstantially, for example, from the fact of the timing, coming just before the election. But there might well be communications between Trump and Cohen or communications with others which would indicate that the payments were being made to stop Daniels from going on TV just before the election.

  If that evidence is in what the U.S. attorneys have gathered, that would be pretty good evidence this was campaign-related and that there has been a campaign finance violation.

  And if it's willful, that moves it from a civil problem that would be handled by the Federal Election Commission to potentially a criminal problem. And with enough money at stake and the motive there, it's potential jail time, is something that's at least on the table, if not something that's likely to happen.

• Judy Woodruff:

  John Carlin, very quickly, how much does it matter when these payments by the president were made back — were made to Michael Cohen and the fact that they were done in installments?

• John Carlin:

  There are a lot of questions still to answer, and one of which would be, were people trying to intentionally deceive in the manner in which they made payments?

  The language funneling was very odd to hear the defense attorney bring in and characterize that way.

• Judy Woodruff:

  Rudy Giuliani used that word.

• John Carlin:

  That was very surprising, because it sounds like lot that it may have been brought in, in order to hide the source of the funds. Might be something that they look into.

  But, again, as you said, Judy, this is one strand of many, many elements now of evidence of different types of criminal activity by people surrounding the campaign and person of the president. More to come.

• Judy Woodruff:

  So many questions, but at the center of it, this contradiction between what the president had said himself and now what his lead personal attorney, Rudy Giuliani, is saying.

  John Carlin, Rick Hasen, we thank you both.

• John Carlin:

  Thank you.

• Rick Hasen:

  Thank you.