Tuesday’s news had an almost surreal quality, like something out of a political thriller: While President Donald Trump’s former campaign chair Paul Manafort was convicted of fraud, his former attorney Michael Cohen told a federal court that the commander in chief had ordered him to violate campaign-finance laws by paying hush money to at least two women with whom the president had affairs.
But as strange as it sounds, this saga is still in its early stages.
“We haven’t been in this territory very often,” John Q. Barrett, a law professor at St. John’s University and a former associate counsel in the Iran-Contra affair, told me. “I think the naming of Richard Nixon as an unindicted co-conspirator in the Watergate investigation is the parallel, or the previous analogous event.”
The turbulent pace of the news cycle in the Trump era has habituated political observers to dramatic developments. But even by recent standards, Tuesday’s events represent a dramatic escalation of legal peril for the president and his allies. Trump’s former campaign chair, his former deputy campaign chair, his former national-security adviser, and his former attorney have all been implicated in federal crimes. That fact is already remarkable, even before considering that the Cohen plea deal suggests that list is likely to grow, and that the president has few options to shield himself that would not fatally undermine democratic governance and the rule of law.
Manafort was convicted by prosecutors from the office of Special Counsel Robert Mueller, who is investigating Russian interference in the 2016 election and potential obstruction of justice by the president. Cohen’s plea deal was reached in connection with a separate investigation by the U.S. Attorney’s Office for the Southern District of New York. Yet both Manafort’s conviction and Cohen’s plea open up a universe of legal risks for the president.
Now that Cohen has pleaded guilty, he can no longer invoke his Fifth Amendment rights against self-incrimination with respect to these acts if interviewed by Congress, a grand jury, or Mueller.
Cohen’s plea deal also raises the possibility that investigators are looking into the Trump Organization itself and its role in facilitating the payments. Prosecutors said the Trump Organization “accounted for these payments as legal expenses,” but “in truth and in fact, there was no such retainer agreement,” and that the invoices Cohen submitted, which added up to more than $420,000, “were not in connection with any legal services he had provided in 2017.”
“There’s two executives from the Trump Organization who were involved in facilitating the reimbursement to Cohen,” said Brendan Fischer, an attorney with the Campaign Legal Center. “It’s not clear whether they knew he was being reimbursed for this illegal contribution to the campaign. But these Trump Organization executives could also be facing some sort of criminal liability.”
The actions of American Media (AMI), which owns the National Enquirer, could also fall under investigative scrutiny. Federal prosecutors say David Pecker, the CEO of AMI and a Trump confidante, “offered to help deal with negative stories about [Trump’s] relationships with women by, among other things, assisting the campaign in identifying such stories so they could be purchased and their publication avoided.” They purchased at least one such story to the tune of $150,000, that of Karen McDougal, a model who said she had an affair with Trump.
Cohen also paid $130,000 to the adult-film actress Stormy Daniels in order to prevent her claim of having had an affair with Trump from emerging in the latter days of the 2016 campaign.
While there is a press exemption in campaign-finance law, if prosecutors believe that AMI deliberately purchased McDougal’s story with the intent to bury it, that could be considered an illegal contribution under campaign-finance law.
As for the president, a major lingering question is whether he knowingly violated campaign-finance laws. The distinction is not trivial—willingly violating campaign-finance laws is a felony, accidentally doing so is not. Although Cohen has said Trump directed him to make the payments, and Trump has publicly acknowledged that the money was his, any hypothetical prosecution would have to prove that Trump was aware he was breaking the law.
Democrats have begun calling Trump an “unindicted co-conspirator,” echoing the language of Watergate prosecutors in the Nixon era, but prosecutors have not yet alleged that Trump consciously knew that he was breaking campaign-finance law.
“No one is prosecuted for campaign-finance violations unless they are willful,” said Rick Hasen, a law professor at the University of California at Irvine and an expert in campaign-finance law. “If they are not willful, they are handled civilly.”
There is also existing Justice Department guidance stating that a sitting president cannot be prosecuted. Nevertheless, the fact that federal prosecutors allowed Cohen to state in court that he was acting at Trump’s direction indicates that the Department of Justice believes that the president himself is implicated in a federal crime.
Trump has consistently praised Manafort as a “good person,” hinting at a potential federal pardon. But the president can only pardon federal crimes, and so that would not prevent Maryland or Virginia from seeking to prosecute Manafort for fraud under state law, against which the president has little recourse. Pardoning Manafort would also, as with Cohen, leave him with no right against self-incrimination—meaning that he could be forced to give testimony that would further implicate Trump.
“A federal pardon would cover anything in the District of Columbia, but theoretically Virginia or Maryland or any other state would not be undercut by such a pardon,” Barrett said.
“When you are pardoned for a federal offense, you no longer have a Fifth Amendment right against self-incrimination, so now you can be called to testify,” said Paul Rosenzweig, a senior fellow with the R Street Institute who was a senior counsel in the investigation of President Bill Clinton. “In some ways, the pardoned person is actually in worse shape for Trump.”
Trump’s options are few, and almost all of them are Nixonian in character. He can attempt to fire Mueller, but given bureaucratic safeguards, that might not end his investigation. Justice Department guidelines prevent prosecution of a sitting president, but there is a small chance, Rozensweig said, that the famously independent Southern District office might not abide by them.
“The Southern District is known as the Sovereign District of New York for good reason,” said Rosenzweig, referring to a nickname used in legal circles. “It has long been the history of the New York offices, particularly the Southern District in Manhattan, but also the Eastern District in Brooklyn, that they go their own way, that they ignore policies they don’t think are wise.”
Trump could order Attorney General Jeff Sessions to shut down the Southern District’s investigation, but every legal expert I talked to said it was unlikely Sessions would follow such an order.
“In a corrupt, bizarre universe, in theory it could happen,” said Bruce Green, a law professor at Fordham University and a former associate counsel in the Iran-Contra affair. “This attorney general is a former U.S. attorney, he has acted completely honorably. In some matters people disagree with his policy, [such as] on criminal-justice issues, but he is not corrupt, he cares about the integrity of the office, I’m sure he would not shut down an obviously legitimate criminal investigation for political reasons, and if someone ordered him to do that, he would disobey or quit, I’m sure.”
Trump’s best option to weather the storm is a Republican victory in the midterms. That would likely stem any push toward impeachment, no matter how substantial the evidence of legal wrongdoing. It could empower him to narrow or shut down the investigations, knowing that a Republican Congress would not stand in the way.
But the political climate is unfavorable, and it’s highly likely there will be more damaging disclosures between now and when ballots are cast. For Trump, for the investigations, for the rule of law, the stakes for November couldn’t be higher.
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