New revelations in investigations related to President Donald Trump Friday sparked talk of indictments and impeachment over the weekend, but legal experts say the significance of the allegations and how they relate to special counsel Robert Mueller’s endgame may not be clear for a while.
“We have more of a picture, but we have far from a complete picture,” said Juliet Sorensen, a former federal prosecutor and director of the Bluhm Legal Clinic at Northwestern University.
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There are two distinct threads here: Mueller’s investigation of Russian interference in the 2016 election and the probe of efforts by attorney Michael Cohen to conceal then-candidate Trump’s alleged affairs in violation of campaign finance laws. Federal prosecutors revealed new details in both last week as they detailed allegations against former Trump aides.
President Trump’s former personal attorney Cohen argued in recent filings that he should face no jail time after pleading guilty to several federal charges, including tax evasion, making illegal campaign contributions, and lying to Congress. On Friday, prosecutors in New York and special counsel Robert Mueller’s team filed sentencing memos seeking several years behind bars despite Cohen providing some cooperation with investigators.
In a separate case, Mueller’s prosecutors argued onetime Trump campaign chairman Paul Manafort breached a plea agreement by telling “multiple discernible lies” to investigators about, among other things, his contacts with Trump administration officials. Manafort had pleaded guilty to crimes related to previous campaign work in Ukraine.
President Trump has falsely claimed the information released Friday “totally clears the President.” White House Press Secretary Sarah Sanders attempted to distance Trump from Manafort and Cohen, accusing the media of “trying to create a story where there isn't one.”
“Democrats can’t find a Smocking Gun tying the Trump campaign to Russia after James Comey’s testimony. No Smocking Gun...No Collusion,” Trump tweeted Monday morning.
The president is correct that the nearly-60 pages of documents released Friday provide no “smocking gun” evidence of collusion between his campaign and Russia. They do, however, accuse him of directing his attorney to commit multiple felonies on his behalf.
As the dust settles from an unusually eventful Friday in Washington, here’s what we know:
The Cohen documents reveal some contacts between Trump’s lawyer and people in Russia, but they do not detail any specific cooperation between the campaign and the Kremlin. They also have no direct bearing on whether Trump has criminally obstructed Mueller’s investigation.
Cohen has admitted that he falsely told Congress talks about building a Trump Tower in Moscow were terminated in January 2016, a claim prosecutors say was intended to limit the investigation of “a lucrative business opportunity that sought, and likely required, the assistance of the Russian government.” Cohen had what is described as “a substantive telephone call” about the project with an assistant to the press secretary for Russian President Vladimir Putin during the campaign.
The documents also reveal Cohen had contact in late 2015 with a Russian national who claimed to be a “trusted person” in the Russian Federation who could provide “political synergy.” That person proposed a meeting between Trump and Putin to discuss business and political interests, but Cohen did not follow up on that invitation.
“What I think we know now is [Mueller] has gathered significant information about Russia’s interest and involvement during the election. What we really don’t know is whether that information amounts to proof beyond a reasonable doubt against the president or other so-far-uncharged individuals,” Sorensen said.
The special counsel’s investigation has so far led to charges against more than 30 people and entities in the U.S. and Russia. Investigators reportedly have other Trump associates in their crosshairs for possible charges, including Roger Stone and Jerome Corsi, but Mueller has given no public indication of how far from the end of his probe he is.
The campaign finance investigation is based in the U.S. Attorney’s Office for the Southern District of New York, which means Trump’s standard complaints about Mueller and his “angry Democrats” do not apply. It also involves payments he admits were made, even if he objects to them being treated as criminal acts.
During the 2016 campaign, Cohen coordinated a payment to model Karen McDougal from American Media Inc., publisher of the National Enquirer, to bury her story of an alleged affair with Trump. He also paid $130,000 himself to silence porn actress Stormy Daniels over another affair claim, which prosecutors say the Trump Organization later reimbursed him for by falsely declaring it a legal expense.
“With respect to both payments, Cohen acted with the intent to influence the 2016 presidential election... In particular, as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1,” the memo states, referring to Trump.
Former federal prosecutor Andrew McCarthy argued in a Fox News op-ed that the Cohen documents indicate Trump is “very likely” to be indicted in connection with the payments. The fact that Cohen was charged over those incidents at all on top of other financial crimes unrelated to Trump signals to him that they are building a case against the president.
McCarthy highlighted the charge related to the American Media Inc. payment, which Cohen merely facilitated. If Cohen can be indicted for causing a third party to make an illegal donation, he posited, prosecutors could use the same logic to indict Trump for causing Cohen to make one to Daniels.
In tweets, Trump dismissed the payoffs as “a simple private transaction” and claimed Cohen is the only one liable if the law was broken. Some legal experts have doubts about that defense.
“If he gave Michael Cohen a lot of cash and told him to go shopping at Sax or buy a plane ticket and Michael Cohen turned around and paid Stormy Daniels instead, that would negate an element of the offense,” Sorensen said. “It doesn’t appear that he did that.”
Trump and his current lawyers insist he did nothing illegal, and they have mocked prosecutors for zeroing in on the hush money payments to the president’s alleged former mistresses.
Even if President Trump is accused of committing campaign finance crimes, it is unclear how damaging that would be, either politically or legally. Violations of campaign finance regulations are often handled with fines rather than prison time and Cohen is far from the most credible witness.
Trump often compares the unreported payoffs to Daniels and McDougal to an audit of President Barack Obama’s 2008 campaign that found donors responsible for nearly $2 million in contributions in the final weeks of the race were not disclosed. The campaign ultimately paid a $375,000 fine.
There is no evidence that those donations were deliberately concealed or that Obama had any role in the failure to report them. The Cohen court filings suggest Trump personally participated in a cover-up to prevent the release of information that would be damaging to his campaign.
“Cohen sought to influence the election from the shadows. He did so by orchestrating secret and illegal payments to silence two women who otherwise would have made public their alleged extramarital affairs with Individual-1,” prosecutors state.
Others have drawn parallels to the case against failed 2008 Democratic presidential candidate and former Sen. John Edwards, which involved allegations that wealthy campaign donors provided nearly $1 million in undisclosed funds to pay off his mistress. Edwards’ attorneys maintained the money was a personal gift to prevent his wife from finding out about the affair. Edwards was ultimately acquitted of one count of violating campaign finance laws, while a jury deadlocked on five other charges.
Whether the similarities to Edwards’ conduct bode well for Trump legally or not, the onetime vice presidential nominee’s political fate is not reassuring.
“It’s true that John Edwards was not convicted for campaign violations, but it’s important to remember his reputation and his political career were destroyed by those allegations,” said Glenn Altschuler, a professor of American studies at Cornell University.
Trump has time on his side for now. The Justice Department’s current guidance is that a sitting president cannot be indicted, and the statute of limitations for campaign finance violations is five years. If Trump gets re-elected in 2020, he can run out the clock on charges related to 2016 conduct, but he could still face prosecution if he loses.
Incoming House Judiciary Committee Chairman Jerry Nadler told MSNBC he may pursue ways to toll the statute of limitations while a president is in office.
Nadler also said in a CNN interview Sunday the allegations against Trump in the Cohen documents would constitute impeachable offenses if true, but they may not be enough to justify actually impeaching him.
“Anybody you ask would say a campaign finance violation such as what’s alleged in these pages... is in theory an impeachable offense,” Sorensen said.
An impeachable offense is essentially whatever a majority of the House decides it is, and Democrats are going to be running the chamber in three weeks. If they ever do vote to impeach, though, it would take two-thirds of a Republican-led Senate to remove Trump from office.
If Republicans have stood by Trump for this long, a campaign finance violation alone is unlikely to tear them apart. In the absence of more extreme allegations of wrongdoing, impeachment proceedings now would be a risky and overly-hasty political endeavor for Democrats.
“They understand that there is likely to be considerably more evidence that might be used in impeachment and there’s every incentive for them to wait for that evidence to come to public attention, and for the possibility of an erosion of support for President Trump from Republican voters and Republican officeholders,” Altschuler said.
Trump’s defenders have argued Trump’s role in the Cohen case amounts to little more than concealing and lying about an affair. When President Bill Clinton did the same under oath in the 1990s, they argue, Democrats defended him against an impeachment effort.
Although the allegations against Clinton were serious, Altschuler said the case against Trump has the potential to become much damaging.
“They didn’t really relate as such to Bill Clinton’s conduct in office, to how he got elected, to what his policies were, to how he might personally have benefited from certain kinds of behavior. They also didn’t extend to other members of his administration,” he said.
While it is true Democrats would be forced to reckon with their party’s track record in an impeachment fight, so would more than a dozen Republican senators who once supported removing Clinton from office.
The Cohen filings state he has provided Mueller’s team with enough useful information to mitigate his sentence, but the Manafort memo indicates investigators do not believe what the former Trump campaign chairman has told them.
According to the special counsel’s office, Cohen provided relevant and truthful information in seven proffer sessions related to his contacts with Russian nationals during the campaign and his contacts with people in the White House after Trump took office. However, his assistance fell short of what the Southern District considers full cooperation, so prosecutors are still seeking “substantial” prison time.
Manafort met with the special counsel’s office and the FBI on 12 occasions and testified before a grand jury twice. According to the documents, Manafort provided conflicting information in a Justice Department investigation, but the specifics of that case are redacted. Prosecutors say Manafort also claimed he had no direct or indirect contact with anyone in the Trump administration, but investigators found evidence of contacts with at least two administration officials.
Prosecutors also revealed new information last week about their case against former National Security Adviser Michael Flynn, asking a judge in a heavily-redacted memo not to sentence him to any prison time because he has been cooperative in three investigations.
“It tells us the special counsel views the information Flynn provided as extremely valuable,” Sorensen said.
If Mueller’s final report becomes public, Trump’s first line of defense—aside from his Twitter feed—will be his attorneys, who he claims have already written 87 pages rebutting what they expect it to say. Attorney Rudy Giuliani has been pushing back aggressively against any accusations of malfeasance, but that may not be enough in the end.
“It seems very likely to me that the end of 2018 and the first months of 2019 are going to have considerably more bad news for the president,” Altschuler said, “and the president’s tweets, the no collusion refrain is beginning to wear a little thin in the face of the evidence. To say, as the president did, that his reading of last week’s revelation was good news is likely to persuade no one other than die hard supporters.”