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- Like Donald Trump, John Edwards was accused of paying off a mistress during a campaign.
- Edwards was charged with campaign finance violations over the payments but wasn't convicted.
- While not a sure thing, the allegation that Trump falsified business records is easier to prove.
A politician paying hush money during a campaign to keep an alleged affair out of the headlines — there is, undeniably, a striking similarity between the cases of one Donald J. Trump, former president, and John Edwards, a disgraced senator, with both accused not just of cheating but of skirting laws to cover it up.
The legal cases against both, however, are quite different.
For one, Trump has not been charged with violating federal campaign finance laws. Edwards was.
"Mr. Edwards is alleged to have accepted more than $900,000 in an effort to conceal from the public facts that he believed would harm his candidacy," Assistant Attorney General Lanny Breuer said in 2011, announcing that the North Carolina Democrat was being charged with accepting illegal campaign contributions and a conspiracy to conceal them.
The gist of the government's case against Edwards was that the money — which was given to Edwards' mistress — should have been reported as a campaign donation, given that it came from the former senator's largest donors and would aid his 2008 presidential campaign. The case fell apart at trial, however, with jurors failing to convict Edwards on a single charge, history that some have suggested illustrates the difficulty of prosecuting Trump for his own alleged payments to Stormy Daniels.
"I think that shows that the one time the Justice Department tried to pursue a case like this, it failed," Hars von Spakovsky, a senior legal fellow at the conservative Heritage Foundation, told Fox News. "That was probably the biggest reason why the Justice Department and the FEC didn't go after Trump because they didn't believe that it was – based on prior experience – a violation of federal campaign finance law, and that's the biggest flaw in this whole case."
It may well be true that the Edwards precedent is why the Justice Department didn't charge Trump with a campaign finance violation. But, while Trump was still president, it did go after his former fixer, Michael Cohen — and it did so successfully. Cohen, in 2018, was sentenced to three years in prison over a hush payment to adult film star Stormy Daniels that is at the heart of Trump's legal troubles today. Among other things, prosecutors charged Cohen with breaking campaign finance laws, arguing that his $130,000 payment to Daniels on the eve of the 2016 election constituted an illegal contribution to the Trump campaign.
Trump has denied the affair and any knowledge of the payments to Daniels, pleading not guilty to the charges he falsified business records.
In other words, federal prosecutors demonstrated that it is indeed possible to put someone behind bars for a hush payment to an alleged mistress — which is itself legal — by arguing that it broke campaign finance laws, coming as it did during a heated election. They were helped, to be sure, by the fact that Cohen pleaded guilty, eliminating the need for a trial; the Edwards prosecution failed, by contrast, because it went before jurors — and because key witnesses, namely the donors who provided the cash for Edwards' mistress, were unable to appear and be questioned at trial (one had already died and one was over 100 years old and deemed too elderly).
When Cohen was indicted, prosecutors noted that he did not act alone, stating that he had made the payment to Daniels to "influence the 2016 election," and that he did so after having "coordinated with one or more members of the [Trump] campaign."
That's where the Trump charges come in
When he indicted the former president, Manhattan District Attorney Alvin Brag did not do so on charges of violating federal law — he, of course, cannot do that. Instead, he accused Trump of falsifying business records to hide the fact he was paying back Cohen for that payment to a porn star. That is a more straightforward case, in some respects: the prosecutor alleges that the payments to Cohen were marked as being for a retainer that federal prosecutors have already demonstrated did not exist.
Bragg does not need to prove that Trump broke federal campaign finance laws; he needs to prove that he falsified business records, which is a crime no matter the reason.
Where it gets dicey, in the view of legal experts, is the fact that the crime of falsifying those records is treated as a misdemeanor in New York, with a statute of limitations that has already expired. Upgrading the charges to felonies, as Bragg has (34 counts), eliminates the time limit — but also requires showing that the records were fudged in the service of another crime, whether or not the accused was convicted of another crime or not.
In his indictment of Trump, Bragg does not say what crime that might be. But an accompanying "statement of facts" accuses the former president of taking part in an "unlawful scheme" that "violated election laws" (speaking to reporters, Bragg noted that state law "makes it a crime to conspire to promote a candidacy by unlawful means"); it also accuses Trump of mischaracterizing the payments to Cohen "for tax purposes."
Speaking to CNN, Ryan Goodman, a law professor at New York University, said that if the underlying crime is a state tax issue then Bragg would be able to avoid questions about campaign finance laws, including whether a hush payment constitutes a violation — something that jurors were not convinced of in the Edwards trial more than a decade earlier.
"That is a stronger case," Goodman said, "because it is insulated from a bunch of the legal challenges, of which there are strong legal challenges to be made to election law crimes."
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