The John Edwards case provides a good roadmap for what could happen with Michael Cohen.
President Donald Trump could easily find himself dragged into the middle of the litigation.
So too could first lady Melania Trump.
There is a recent case that provides a roadmap for what could happen to President Donald Trump and his longtime lawyer Michael Cohen after the FBI conducted raids on his office, home, and hotel as part of a Justice Department investigation.
And how the defense argued that case could lead to first lady Melania Trump becoming a key figure in a Cohen case moving forward.
That other case involved former Democratic Sen. John Edwards of North Carolina. The Justice Department (DOJ) took Edwards all the way to trial over payments some supporters made to his mistress, Rielle Hunter, in the lead-up to the 2008 election cycle. Edwards was prosecuted on six counts, one of which he was acquitted on while the jury was hung on the other five, resulting in a mistrial. The case was not brought back forward.
Business Insider's Josh Barro wrote on the subject earlier this year, noting that the central focus of that case was whether outside spending to conceal a similar affair constituted a campaign expenditure.
"Edwards wasn't convicted, but his jury hung on several counts, and the trial was driven by factual questions: Did Edwards know about the payments, and was their purpose political, or were they simply intended to keep the peace within Edwards's marriage?" Barro wrote.
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That brings us to Cohen, who facilitated a $130,000 payment to porn star Stormy Daniels just weeks before the 2016 presidential election. Daniels, whose real name is Stephanie Clifford, alleged that she had an affair with Trump at a celebrity golf tournament in 2006. Cohen paid her to keep quiet about the alleged affair.
Cohen has insisted that the payment was not a campaign contribution, which, if it was, would have far exceeded the $2,700 maximum to the Trump campaign. He also said he was not reimbursed for the payment.
During the FBI's Monday raids, the agency took records related to several topics, including the payment to Daniels, as well as emails, tax documents, and business records, The New York Times reported.
The Washington Post reported that investigators were looking into whether Cohen committed bank fraud or violated campaign finance law, which all appeared to stem from the Daniels payment. Agents were also looking for records of payments to two women who say they had affairs Trump and for information on the role of the publisher of the National Enquirer in keeping one of the women quiet, The Times reported Tuesday.
The case against Cohen, and possibly Trump, is 'much stronger' than the Edwards case
As one expert explained, the Justice Department's case against Cohen, and possibly Trump, is "much stronger" than the case against Edwards, which he said was "rightly" prosecuted.
"Both motive, and timing and motive, are relevant distinctions," Paul S. Ryan, vice president of policy and litigation at Common Cause, told Business Insider. "With respect to motive, John Edwards's lawyers made a big deal at the trial about the fact that the DOJ had zero evidence that Hunter was talking to the press about going public with her story or even contemplating it."
Daniels had first come forward with her story in a 2011 interview with a celebrity gossip magazine. She said during a recent "60 Minutes" interview that Trump worked to squash the piece from being published. Cohen approached her with the hush money and non-disclosure agreement once word got out that she was considering coming forward in a new interview.
Edwards's "lawyers argued that this was not about hiding this affair and this pregnancy from the public and the press, this was about hiding the affair and the pregnancy from John Edwards's very sick wife," Ryan continued. "And so, by contrast, we know, as a factual matter, that Stormy Daniels made it clear she was talking to multiple national media outlets in October of 2016 and contemplating going public with her story. And that's what got Donald Trump's attention."
The other issue that makes the case against Cohen, and possibly Trump, stronger than the Edwards case is when the payment was made, Ryan said. The payments to Hunter were made before any primary ballots were cast. Cohen made the payment just days before the election, which gives the appearance that the electoral results, and not protecting someone like Melania, was the main purpose of the payment.
"So much closer to the nexus of the presidential general election was the Stormy Daniels payoff than the John Edwards payoff," Ryan said.
Now, Cohen has argued that the payments were made with Trump's "family" in mind.
"People are mistaking this for a thing about the campaign," Cohen told Vanity Fair earlier this year. "What I did defensively for my personal client, and my friend, is what attorneys do for their high-profile clients. I would have done it in 2006. I would have done it in 2011. I truly care about him and the family — more than just as an employee and an attorney."
Ryan said Cohen will likely end up arguing that the payments were made to protect the president's wife from embarrassment. But the other "factual circumstances" here make the argument less likely to hold up in the same way it did for Edwards.
"The payments to Hunter coincided with the affair and the pregnancy," Ryan said. "With Stormy, it happened more than a decade after the affair took place. Further investigation may ... undercut any argument by Michael Cohen that this payment wasn't about keeping the information from voters but to keep the information from Melania. We'll see about that. It seems unlikely given the decade lapse in time."
"I think to the extent that Cohen argues this was about keeping the information from Melania, then what Melania knew and when she knew it will certainly be relevant," he continued, adding that he wants to see Cohen, Trump, Daniels, and Melania all be deposed.