President Donald Trump is in legal and political jeopardy, and he doesn’t seem to know it. The U.S. Attorney’s office for the Southern District of New York (SDNY) has filed a sentencing memorandum in the case of Michael Cohen, Trump’s former lawyer and personal advisor. It candidly lays out the federal case against Trump for campaign finance crimes.
The prosecutors say that payments Cohen caused to be made to two women who say they had extramarital affairs with Trump were “in coordination with and at the direction of” Trump. (Trump denies that these alleged affairs occurred, and says he did not know about the payments when they occurred.) The SDNY’s sentencing memo thus implicates Trump in at least three crimes.
First, it is generally unlawful for a corporation to make a contribution or expenditure in connection with an election to federal office. Cohen pleaded guilty to causing such an unlawful contribution by American Media Inc., the owner of the National Enquirer.
According to court documents, Cohen coordinated AMI’s purchase of the “limited life rights” of former Playmate Karen McDougal’s claim to have had an affair with Trump, and did so for the purpose of influencing the presidential election. This last detail—that it was done for the purpose of influencing the election—is what makes this a campaign contribution and not a garden-variety services contract. Also, prosecutors’ claim that Cohen did it at Trump’s direction would, if true, make Trump as guilty as Cohen.
Second, it is unlawful for an individual to make a contribution or expenditure in connection with an election to federal office in excess of certain amounts ($2,700 in 2016). Cohen pleaded guilty to making such a contribution by paying $130,000 for onscreen prostitute Stormy Daniels’ silence. Just like the McDougal payment, the SDNY prosecutors say this payment was for the purpose of influencing the election and done at Trump’s direction. Again, if true, that makes Trump as guilty as Cohen.
Third, regardless of source or amount, presidential campaigns must disclose all contributions in regular filings with the Federal Election Commission. In the sentencing memo, the SDNY’s prosecutors lean heavily on the fact that Cohen structured these payments to foil “one of the core goals of the federal campaign finance laws: transparency.”
Mandatory disclosure laws exist so the American public can assess who is funding political candidacies. Cohen concealed these contributions as services contracts and by using a shell corporation—which, by the way, is further evidence that he knew he was breaking the law. If it was done at Trump’s direction, as alleged by the SDNY’s prosecutors, that’s another crime.
Thus, in the sentencing memorandum for Cohen, federal prosecutors have provided a roadmap for Trump’s indictment. Were he any other person, they certainly would have presented this information to a grand jury for indictment by now. But the Department of Justice’s view is that sitting presidents cannot be indicted because it would undermine the executive branch’s ability to perform its constitutionally assigned role.
This question was last addressed by the Office of Legal Counsel during the Bill Clinton administration. However, it actually extends back to the Nixon administration, which first determined that sitting presidents could not be indicted. Changing that view now would validate all of Trump’s claims of being persecuted by the federal bureaucracy. This doesn’t mean that Trump is safe; given the five-year statute of limitations on campaign finance crimes, it means only that Trump is safe for now.
Trump also has several potential avenues to attack an indictment as described. Obviously, he can try and establish that Cohen didn’t act at Trump’s direction. He could also show that the payments were not for the purpose of influencing the election, but for a different reason (protecting first lady Melania Trump’s feelings, for example).If true, that would mean that, as far as Trump knew, he wasn’t directing campaign contributions. But even a defense like this opens Trump up to additional legal jeopardy if he lies to investigators.
Keep in mind that federal prosecutors have Cohen’s recordings of conversations with Trump, and have granted immunity to the AMI executives who handled the McDougal payment. It is very likely that the SDNY’s prosecutors know more about this than has been revealed so far. Their candidness about Trump’s misconduct in the sentencing memo suggests they are relying on more than just Cohen’s say-so.
So the SDNY’s prosecutors have laid out their case that Trump conspired to conceal from the voters payments to alleged mistresses in violation of campaign finance laws—even if they cannot act on it for now. Congress, on the other hand, can at any time impeach and remove a president for “high crimes and misdemeanors.” And whether something is a high crime or misdemeanor is solely in the discretion of a majority of members of the House of Representatives, subject to agreement by two-thirds of the Senate.
The incoming Democrat-led House will certainly be considering this question. Moreover, at this point, Trump cannot discount the possibility that even more crimes will be revealed in the course of the SDNY’s work or that of Special Counsel Robert Mueller. This means that, even aside from criminal jeopardy, Trump’s political fortunes may also turn on the decisions of federal prosecutors.