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Trump lawyer’s payment to porn star draws comparisons to John Edwards case

John Edwards saw his reputation savaged when his affair with videographer Rielle Hunter was revealed during the 2008 presidential campaign. | Charles Ommanney/Getty Images

Porn actress Stephanie Clifford’s lawsuit against President Donald Trump over a hush-money deal struck days before the 2016 election is drawing comparisons to another legal fight involving a politician who had an affair: John Edwards.

Edwards saw his reputation savaged when his affair with videographer Rielle Hunter was revealed during the 2008 presidential campaign, after Edwards’ wife had been diagnosed with terminal cancer. But the fallout wasn’t just political: Edwards was eventually indicted on six felonies after wealthy donors spent $ 1 million to cover travel, hotel, medical and housing expenses incurred by Hunter, who was pregnant with Edwards’ child. The travel included secretive charter flights arranged to hide the pregnancy.

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Now, Trump’s alleged dalliance with a porn actress has moved beyond tabloid fodder, too, as questions mount about his involvement in a payoff just weeks before Election Day 2016. With Clifford’s claim now in court, Trump and his associates could be forced to answer questions under oath and turn over documents about his involvement in the arrangement and what his role was in the $ 130,000 longtime Trump attorney Michael Cohen arranged to pay to the adult film star in October 2016.

The key legal question is whether the $ 130,000 was intended to advance Trump’s chances in the election. If it was, it should not have been routed through a corporation and might amount to an illegally large campaign contribution. If Trump paid the money in connection with his campaign, it should have been reported on his campaign finance reports.

“I do think this is moving closer and closer to the territory where Edwards was subject to criminal prosecution,” said Hampton Dellinger, a former North Carolina deputy attorney general who closely followed the case against the former Democratic presidential hopeful.

Edwards was charged in 2011 with conspiracy, accepting illegal campaign contributions and making false statements. A jury acquitted Edwards on one charge and couldn’t reach verdicts on the others, although jurors said the vote tallies leaned in favor of acquittal on those counts as well.

The suit Clifford filed this week argues that Trump must have been involved in directing Cohen to bottle up Clifford’s potentially damaging story as well as text messages and photos that may have embarrassed the then-candidate, just as he was dealing with fallout from an old “Access Hollywood” recording in which he bragged about groping women.

“It strains credibility to conclude that Mr. Cohen is acting on his own accord without the express approval and knowledge of his client Mr. Trump,” Clifford’s lawsuit states.

The payment would only need to have been included in campaign finance reports if it was related to Trump’s candidacy, not if it was for personal reasons.

“I think the timing of this payment in relation to the campaign and some of the other statements that were supposedly made by Cohen make it a somewhat stronger case that this was not personal, but was campaign related,” said University of California law professor Rick Hasen. “It’s by no means a sure thing.”

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Cohen said in a statement Friday that Clifford’s lawyer, Michael Avenatti, “has clearly allowed his 15 minutes of fame to affect his ludicrous conclusions. The earth-shattering uncovered email between myself and the bank corroborates all my previous statements; which is I transferred money from one account at that bank into my LLC and then wired said funds to Ms. Clifford’s attorney in Beverly Hills, California.”

Cohen added that he drew on a home-equity line of credit to make the payment.

In a statement last month he said he used “personal funds to facilitate a payment of $ 130,000 to Clifford.” The payment was made through a limited liability corporation in connection with a non-disclosure agreement aimed at silencing Clifford about her involvement with Trump starting in 2006.

“The payment to Ms. Clifford was lawful, and was not a campaign contribution or a campaign expenditure by anyone,” Cohen said in his earlier statement.

Through spokespeople, Trump has insisted there was no affair with Clifford. Cohen has not been clear in his public statements about whether Trump knew about or directed the payment.

“The president has denied the allegations against him,” White House press secretary Sarah Huckabee Sanders told reporters Wednesday. “This case has already been won in arbitration,” she added, apparently referring to a confidential, private proceeding aimed at enforcing the non-disclosure agreement Clifford and Cohen signed using pseudonyms.

Watchdog groups like Common Cause have urged the Justice Department and the Federal Election Commission to investigate the pre-election payment. Citizens for Responsibility and Ethics in Washington issued a new call Thursday for probes into the issue in the wake of press reports that Cohen complained to friends that Trump had not reimbursed him for the money sent to Daniels.

CREW said that if Trump owed Cohen the money, Trump should have reported the debt on his financial disclosure form, which does not list any liability to the attorney.

A Justice Department spokeswoman declined to say whether the Justice Department is investigating the payment or to identify who in the department would handle such a review.

“It is longstanding policy of the Department of Justice not to comment on requests to confirm or deny the existence of investigations, regardless of whether there is or isn’t one,” DOJ spokeswoman Nicole Navas Oxman said.

A trial lawyer and friend of Edwards who testified at the ex-senator’s 2012 trial, John Moylan, said it wouldn’t be a surprise if federal prosecutors were already figuring out how to investigate Cohen’s payment to Clifford.

“Someone, somewhere in the world of the Justice Department, I would think….is noodling over that as we speak,” Moylan said. “That would be the factual question to resolve: why was it done?….Given the timing, it is a little hard to think the campaign was not a significant motivating factor.”

One factor that would weigh strongly against any prosecution over the payment to Clifford is that prosecutors never managed to prove their case against Edwards, who was not retried after his acquittal.

Moylan said he doesn’t think the failure of the Edwards prosecution means the episode involving Cohen and Clifford couldn’t be prosecuted, but said he thinks the outcome of that trial would be a factor.

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“I am sure they will look at the facts that mattered in the Edwards case and compare them to the evidence put together here and make a decision about whether to go forward,” Moylan said.

One open question is who at Justice would conduct such an investigation. Attorney General Jeff Sessions has recused himself from all matters related to the 2016 election. That would presumably include the payment to Clifford, although officials declined to confirm that Friday.

“We don’t discuss specific issues in the scope of a recusal,” DOJ spokeswoman Sarah Isgur Flores said.

The issue would probably fall to Deputy Attorney General Rod Rosenstein, lawyers said. He could potentially assign the issue to special counsel Robert Mueller, who is already exploring several subjects related to the 2016 campaign.

Rosenstein could also leave the issue to the prosecutors who typically handle campaign-related matters, the Public Integrity Section’s Election Crimes Branch, since any expansion of Mueller’s probe seems certain to infuriate Trump.

“It’s not like this can just now die down,” said Lawrence Noble of the Campaign Legal Center. “This now has a life of its own….Pressure is mounting the more that comes out about it.”

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