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| Michael Cohen, (center) former personal lawyer and confidant for President Donald Trump, exits the United States District Court Southern District of New York on May 30, 2018, in New York City. Eduardo Munoz Alvarez/Getty Images |
The president “is all but an unindicted
co-conspirator.”
By Sean Illing@seanillingsean.illing@vox.com
President Donald Trump’s former lawyer, Michael Cohen, has surrendered to federal authorities in New York. Cohen has pleaded guilty to eight criminal charges, two of which are related to his payment of hush money to women with whom Trump had affairs, including porn actress Stormy Daniels. And he has reportedly admitted that the payment was made “at the discretion of the candidate,” which in this case almost certainly means Trump. The big question now is, what sort of legal jeopardy does this place Trump in? And perhaps more importantly, what does this mean for special counsel Robert Mueller’s Russia probe? To get some answers, I reached out to 13 legal experts. Their full responses, lightly edited for clarity, are below.
Lisa Kern Griffin, law professor, Duke University
The president’s personal attorney has given sworn testimony in open court that he committed campaign finance violations in coordination with and at the direction of the president. Although the president is not named in the charges, he is all but an unindicted co-conspirator.
This turn in the president’s fortunes is dramatic and damaging, and it should have political repercussions even if it does not have immediate legal ones. All of this is occurring in the Southern District of New York and involves wrongdoing in addition to the campaign activities that are the focus of the special counsel’s investigation.
Jens David Ohlin, law professor, Cornell University
Trump is clearly guilty of violating campaign finance laws and also guilty of federal conspiracy as well (because he agreed with Cohen, and possibly others, on a plan to violate federal law). Normally he would be indicted right away. But that won’t happen only because he’s the president. But I suspect he’ll be named as an unindicted co-conspirator and also there’ll be a separate section of the Mueller report titled “Conspiracy to Violate Campaign Finance Laws” or something like that.
Michael Kang, law professor, Northwestern University
Michael Cohen’s guilty plea to campaign finance violations has important implications for President Trump. Cohen reportedly admitted that the payments he arranged for Stormy Daniels and Karen McDougal on Trump’s behalf were campaign related, not personal expenditures, and were made with the coordination and at the direction of a federal candidate.
Assuming he or prosecutors can substantiate this claim, the payments were illegal campaign contributions that exceeded the applicable limits and needed to be reported. What’s more, if Trump knew the payments were campaign related and directed them, as Cohen alleges, then Trump too violated campaign finance law.
Diane Marie Amann, law professor, University of Georgia
The president’s lawyer, Michael Cohen, has just pleaded guilty to violating federal tax, banking, and campaign finance laws. The big question, of course, is the extent to which the case against Cohen involves others. If the Cohen investigation unearthed evidence implicating the President in the crimes of conviction — whether through statements by Cohen or through documents seized from him — that is very good news for Mueller and very bad news for Trump.
Joshua Dressler, law professor, Ohio State University
Cohen’s admission that the hush money that constituted 2 felony convictions, was done at the direction of a candidate for federal office, clearly implicates the President in those campaign violations. Essentially, Cohen, under oath, in a federal court, has alleged that the President of the United States conspired to violate federal law.
If he were not a sitting president this would constitute grounds for indictment on those charges. As a sitting president this constitutes, if Congress wishes to do so, impeachable offenses. But, as we know, impeachment is a political rather than a legal concept, and it would seem pretty clear that nothing will occur with the current Congress.
Ciara Torres-Spelliscy, law professor, Stetson University
Two counts that Michael Cohen plead guilty were for campaign finance violations: (a) for causing an illegal corporate contribution and (b) for an excessive personal campaign contribution for his payments to two women during the 2016 campaign.
United States campaign finance laws have been watered down by the Roberts Supreme Court since 2006, but there are a few pillars of campaign finance law that the Supreme Court has upheld again and again: (1) bans on corporations’ giving directly to federal candidates, (2) bans on foreigners’ spending in US elections, (3) the lawfulness of contribution limits and (4) the requirement that money going into and going out of federal campaign be fully disclosed.
Another fundamental requirement of campaign finance law is that campaign funds be used for legitimate campaign expenditures and not for personal use. The Cohen pleas on counts 7 and 8 appear to acknowledge his working with candidate Trump to violate federal campaign finance laws by violating two of those pillars (the corporate ban and the contribution limits), which aim to prevent corruption of the American political process.
Asha Rangappa, former FBI agent and senior lecturer, Yale University
It remains to be seen whether or not Michael Cohen has any valuable information to offer to prosecutors that may be able to reduce his sentence for the charges he is now pleading guilty to. Most of the focus has been on the information he could potentially provide to Special Counsel Robert S. Mueller in the Russia probe.
But a potentially bigger threat to President Trump is what Cohen could provide to the Southern District of New York about potential crimes committed by Trump or members of his family that are unrelated to the Russia probe. Michael Cohen, as Trump’s longtime “fixer” knows where the proverbial bodies are buried when it comes to the Trump Organization and particularly its finances going back many, many years.
If Cohen provided information on potentially criminal activities to the Southern District and it opened an investigation into them, it would place the President in a double bind: First, since it would be an investigation separate and apart from the Mueller probe, he wouldn’t be able to argue that the Special Counsel exceeded his mandate or crossed a “red line” — after all, any U.S. Attorney’s office is legally authorized (and duty-bound) to investigate any violations of federal law it learns about.
More importantly, such an investigation would be completely insulated from any steps Trump might take to fire Mueller, Deputy Attorney General Rod Rosenstein, or even Attorney General Jeff Sessions (especially since his interim pick to head the Southern District who recused himself from overseeing the Cohen investigation, would undoubtedly recuse himself from any other Trump-related investigation as well). So Trump has much more to fear from Cohen than just what he knows about Russia-related matters.
Christopher Slobogin, law professor, Vanderbilt University
If Cohen pleads guilty to violating campaign finance law by making payments to Daniels, and it can be proven that Trump sought, or encouraged him to make, the payments, Trump would be guilty of conspiring to commit a federal crime.
His defense might be that he did not know the payments would violate campaign finance law, but ignorance of the law is typically not an excuse. Whether that type of crime is an impeachable offense, however, is up to Congress.
Ric Simmons, law professor, Ohio State University
The fact that Cohen implicated President Trump in his plea allocation is extremely significant, since it ties Trump directly to illegal campaign activity. Although the plea agreement does not mention cooperation with the special prosecutor’s office, Cohen’s willingness to speak out against Trump now implies he will cooperate with the special counsel moving forward, perhaps in the hopes of obtaining a lower sentence.
Also newsworthy is the fact that last week the special master in the case finished her review of the documents seized from Cohen’s office and determined that almost none of the documents are protected by attorney-client privilege. Judge Wood formally adopted that finding on Monday. This means that almost all of these documents will be available to prosecutors investigating the Trump campaign. Given Cohen’s admissions today, these documents from his office may prove to be very valuable to the special prosecutor’s office.
Andrew Wright, law professor, Savannah Law School
If Michael Cohen engaged in federal crimes at the direction of Donald Trump, then Trump will likely be guilty of those crimes on some combination of solicitation, aiding and abetting, and conspiracy. This is not the Mueller investigation, and it is not obstruction of justice inquiry in which the Trump legal team can assert some theory of executive power impossibility for obstruction crimes grounded in his official acts. If Donald Trump conspired with to commit felonies as a candidate, the only thing that might protect him is the question of whether he couldn’t be indicted for the duration of his tenure in office.
Douglas Spencer, law professor, University of Connecticut
While Cohen’s guilty plea has no bearing on the question whether the Mueller investigation was properly instigated, claims that the Mueller investigation is a “witch hunt” will be further undermined as yet another individual connected to the Trump campaign admits that he broke the law.
Substantively, while Michael Cohen never held an official position on the campaign team, his guilty plea reportedly says he acted at the direction of a candidate (presumably Donald Trump) with the purpose of influencing the election. President Trump admitted via tweet on May 3 that he reimbursed Cohen for his (now admittedly illegal) payment to Stormy Daniels, so Cohen’s guilty plea will certainly implicate President Trump.
The media is reporting that Cohen will not cooperate with Mueller. But he may not have to. Rudy Giuliani drew the dots and Cohen’s admission now arguably connects them.
Victoria Nourse, law professor, Georgetown University
This was a sad day for America, but a spectacular day for the Mueller investigation. Cohen’s New York plea was not handled by Mueller’s office, but it told the same story as the jury verdict obtained by Mueller in the Manafort trial in Virginia. We now know that the president claimed to unearth the swamp, but he hired it.
Federal law calls what Cohen and Manafort did by the simple name of fraud — lying when you have a legal obligation to tell the truth. If Cohen is correct that he aided the President in a crime, the President’s only defense is to diminish the seriousness of the violation to the public or insist that Cohen lied.
Aiding a crime is a crime in America — if you authorize a murder, even if you authorize your lawyer to commit a murder, you are guilty of a crime, and one would hope so. Attention will now shift from foreign threats to our nation’s electoral system to porn star hush money. As I said, it’s a sad day for America.
Paul Butler, law professor, Georgetown University
There are two ways that convicted felons Paul Manafort and Michael Cohen avoid spending many years in one of those wretched places. One is to be pardoned by the president of the United States. The second is to deliver up Donald Trump to Special Counsel Robert Mueller.
Trump said, after the Manafort and Cohen convictions, that he “feels badly” for both. Manafort’s pardon seems virtually a done deal. But Michael Cohen has already implicated Trump as his co-conspirator to violate federal campaign financing laws. Providing more evidence to Mueller would be any lawyer’s recommendation to Cohen, to reduce his time in the pen.
But even if Trump pardons Cohen, it would have the same effect as immunizing him, meaning Cohen could be forced to testify about everything Trump has ever done. The president has no good options — Tuesday August 21 marks the beginning of the end of Donald Trump’s presidency, and possibly his freedom.
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