Giuliani & Trump: Sex, lies & lawyers

Despite the well-earned criticism of Rudy Giuliani for his first interview as President Trump’s new counsel, it was a daunting task.

The legal team had clearly concluded that (with the raid on Trump’s personal counsel, Michael Cohen) it could no longer factually or legally defend the president’s prior blanket denial of an affair or knowledge of the agreement with porn star Stormy Daniels. Giuliani failed in the pivot and was forced to correct himself, receiving a rebuke from Trump to “get his facts straight.”

The danger, however, is far greater than a lawyer learning about a case live on television like some legal reality show. The problem for Trump is that the Daniels controversy could supply the obstruction case that has long evaded special counsel Robert Mueller.

In a Sunday interview on ABC’s This Week, Giuliani continued to search for terra firma. At one point, Giuliani was reduced to insisting that while he could no longer assert facts as counsel, “I can prove it’s rumor. But I can’t prove it’s fact. Yet. Maybe we will.”

Somewhere in there is a good defense lost in bad delivery.

Giuliani was continuing to try to advance a valid line of defense called the “irrespective test” under the Federal Election Commission (FEC) rules that allow personal expenditures if the “commitment, obligation or expense of a person ... would exist irrespective of the candidate’s election campaign.”

But the Trump administration’s legal legacy is a litany of self-inflicted wounds. Trump insisted recently that without an underlying crime, you cannot obstruct justice. In truth, that is no easy feat, but the president is making an impressive effort.

The problem has never been his case (or cases). He has a strong defense in his choice to fire FBI Director James Comey, for example. Despite Trump’s best efforts, the evidence falls substantially short of a credible obstruction case.

The Daniels case, on the other hand, could present a much easier case for obstruction or related crimes. The New York prosecutors are investigating the payments and have conducted a raid that, in part, sought information related to payments to Daniels.

Efforts to withhold evidence, encourage false testimony, or influence witnesses could present credible foundation for criminal charges ranging from witness tampering, obstruction to subornation.

The Trump team appeared to finally recognize that Cohen had put the president in the worst possible position with his payment of hush money and incriminating past statements. Giuliani then took a bad position and made it worse. He tried to reframe the payment of $130,000 from a gift to a loan, thereby tripping a series of new potential criminal and ethical violations without removing the campaign-finance threat.

The greatest danger of the campaign-finance allegations, however, is not the charge itself. These violations are rarely charged criminally and, as shown in the failed prosecution of former Democratic presidential candidate John Edwards, difficult to prove.

Rather, the greatest danger is the response to the investigation into campaign-finance violations or fraud.

If the president was involved in sending out a false public account by both his private counsel and White House staff, it could be treated as a potential criminal matter. Likewise, any evidence that Cohen was warned or in any way protected by officials before the raids could prove incriminating.

Even more worrisome are accounts that Trump continued to call Cohen. According to NBC News, Trump made at least one call after his own Justice Department raided Cohen’s office and Cohen was rumored to have recorded conversations with his clients. The recklessness of such a call is impossible to overstate. If prosecutors believe that there is a campaign-finance violation or fraud, such contacts could easily lay the foundation for more serious criminal allegations for Trump.

Trump has always portrayed himself as a vicious “counterpuncher.” However, the federal code has a crime designed specifically for counterpunching in the midst of a criminal investigation. If Trump isn’t careful, that’s how a porn star could take down a president.

Jonathan Turley, a member of USA TODAY’s Board of Contributors, is a law professor at George Washington University.