WASHINGTON — Here’s a political riddle: Is it ever a good idea to stand up and admit to paying off a porn star to keep quiet about an alleged sexual encounter?
The president of the United States has found himself mulling this question in recent weeks and, after zigging and zagging, Donald Trump decided the answer is Y-E-S: He and his lawyer Rudy Giuliani acknowledged that Trump was the source of the $130,000 in hush money paid to Stephanie Clifford (a.k.a. Stormy Daniels). Moreover, the president now says that the money came via an ongoing retainer that Trump paid to personal lawyer Michael Cohen.
It’s a version of events that offers a possible path, narrow though it may be, out of the thicket of campaign finance rules that threatens to ensnare both Trump and Cohen.
“It’s plausible that Cohen was his fixer,” said Alan Dershowitz, a Harvard law professor emeritus and an outspoken Trump defender. “Fixers get paid a certain amount of money.” In such an arrangement, Dershowitz said, it’s possible that Trump wouldn’t have known every detail about the transactions.
Dershowitz said, under that theory, the attitude from Trump would be, “I don’t want to know the details, just make it go away.”
Dershowitz acknowledged that the White House, along with Trump’s legal team, hasn’t explained the payments particularly well. Trump initially denied any knowledge of the payment and his spokeswoman Sarah Sanders has done the same from the White House briefing room.
He complained that “seven different people” are describing the events “seven different ways.’’
“They don’t speak with one voice,” Dershowitz said in an interview Thursday. “They do it orally instead of in writing. It is not nearly as effective as it would be if they made sure they have one narrative.”
But optics aside, the legal question that the payment now presents is this: Was the $130,000 check to Daniels written in order to protect Trump’s chances at winning the presidential campaign? Or would he have made the payment regardless of his status as a candidate, because he wanted to avoid embarrassment and the effect on his family?
All campaign contributions and loans, even by the candidate himself, must be disclosed to the Federal Election Commission, and this one was not. So if it can be construed as furthering the goals of the campaign, it should have been disclosed and legal penalties can apply for failing to do so.
Making such a determination can be vexing, said James Cooney III, a white collar attorney who represented former presidential candidate John Edwards in a similar legal case. (The Edwards case involved campaign finance violations stemming from payments to a woman he’d had an affair with and impregnated.)
“Would the expense have been incurred if the candidate wasn’t running for office?” Cooney said. “If the candidate would have done it anyway, it is not an in-kind contribution” he said, and therefore not subject to federal reporting requirements.
“If he did it motivated primarily by the fact he was running for office, it is related to the campaign, it becomes a campaign contribution,” Cooney added.
There is some awkwardness to proving that paying a porn star is part of normal behavior. One avenue, Cooney said, would be showing evidence that Trump has repeatedly made such payments.
‘They don’t speak with one voice. They do it orally instead of in writing. It is not nearly as effective as it would be if they made sure they have one narrative.’
What’s more likely, he said, is for Trump to argue that he made the payment in an effort to save his marriage, not his campaign.
That too, could be a difficult argument to make: Trump continues to maintain that he didn’t have an affair with Daniels, which makes it much more difficult to claim the payment was primarily about preserving the marriage.
“Why are you going to pay someone off to save your marriage if there’s no there there?” Cooney said. “And if there’s no there there — then it begins to smell like an election issue.”
One of Giuliani’s comments made the payment appear to be largely campaign-related.
Speaking on “Fox & Friends” Thursday, Giuliani noted that Cohen’s decision to pay off Daniels came in the closing weeks of the campaign.
“Imagine if that came out on October 15, 2016, in the middle of the last debate with Hillary Clinton,” Giuliani said. “Cohen didn’t even ask. He made it go away. He did his job.”
Trump might try one other approach, Cooney said, and argue that he never thought he’d win the election, and therefore he didn’t have any motivation to save the candidacy.
“He could say: ‘I thought I was going to lose, so it didn’t have anything to do with the campaign,’ ” Cooney said.
The Trump team has another problem: It has offered a number of contradictory comments about the payment, which can be presented in a legal case.
For example, on April 5 aboard Air Force One, Trump told reporters that he didn’t know about the payments to Daniels. “No. No. What else,” Trump said when asked. Reporters pressed him, and asked if he had any idea where Cohen got the money for the payment. “No, I don’t know. No,” Trump replied.
“It’s been routinely lied about,” said Richard Serafini, a white collar defense attorney. “You can make the argument to the jury that lying shows conscience of guilt.”
He added that the developments might be helpful to Cohen, who also faced an allegation that the $130,000 payment grossly violated a campaign finance rule limiting a contribution to $5,400.
“It gets Cohen off the hook to a degree,” he said. “But I think Cohen has all kind of problems we don’t know about,” he added, referring to recent FBI raids on his hotel room and office.
Professor Richard L. Hasen, a specialist in campaign finance law at the University of California, Irvine, agreed that the payment could run afoul of campaign finance law.
“Giuliani’s statements might have taken Cohen off the hook and put Trump on it. It now looks . . . like he made a loan to the campaign, which Trump failed to report. Trump also failed to report repayments of the loan,” Hasen said in an e-mail.
Another concern that’s been raised is whether Trump is trying to avoid admitting infidelity for financial reasons: One common thread of discussion in Washington is whether acknowledging an affair could impact a prenuptial agreement signed by the president with Melania Trump.
Some divorce lawyers note that these agreements sometimes contain “bad boy” or “bad girl” clauses.
Trump had prenuptial contracts with his first two wives, and it’s likely he has one with his third, said Raoul Felder, a New York matrimonial attorney who knows the Trumps but did not represent them.
But Felder, who has written hundreds of those agreements, said that it’s unlikely the contract would provide Melania Trump with more money if evidence of infidelity arose.
“It’s just silly,” he said. He likened the notion to a “lottery” where one party gets ever more cash as the other’s misdeeds pile up higher and higher.
“I’ve never drawn one like that,” Felder said.Martine Finucane of the Globe staff contributed. Annie Linskey can be reached at firstname.lastname@example.org. Follow her on Twitter @annielinskey.