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By Daniel S. Goldman, former assistant U.S. attorney and NBC/MSNBC legal analyst
Last week, special counsel Robert Mueller submitted three significant court filings that, combined, significantly added to the public information about his investigations into Russian interference in the 2016 election and efforts to obstruct that investigation. While much still remains to be revealed, my former colleagues in the Southern District of New York have now established a third flank of legal concern for President Donald Trump that is in some ways even more worrying for the president than Mueller’s known line of attack. In a blistering sentencing submission filed against Michael Cohen, the SDNY definitively indicated that Trump conspired with Cohen to commit the felony crime of campaign finance fraud.
Based on what we know right now (and there is likely more that we don’t know), as well as my decade of experience as a prosecutor in the SDNY, I believe there is sufficient evidence to charge Donald Trump with that crime.
Based on what we know right now, as well as my decade of experience as a prosecutor in the SDNY, I believe there is sufficient evidence to charge Donald Trump.
Yet Trump will not be charged while he remains in office. Even though the SDNY determined that Michael Cohen was “forthright and credible,” Cohen has so far refused to fully cooperate with the SDNY and therefore his testimony cannot be relied upon to charge Trump. Even if Cohen were to have a change of heart and pursue full cooperation — perhaps after his sentencing, slated for Wednesday — Trump still almost certainly will not be indicted because of a Department of Justice policy dictating that sitting presidents shall not be indicted due to the distraction such a prosecution would entail. But although Trump won’t be charged as Cohen’s co-conspirator, there is nonetheless sufficient evidence to charge him with defrauding the American people in order to obtain the highest office in the land.
Let’s take stock of what this most recent information indicates. First, at his plea hearing in August, Cohen stated under oath that he orchestrated or made payments to Stormy Daniels and Karen MacDougal shortly before the 2016 election in order to prevent the public from learning about Trump’s alleged affairs with both women. Because corporations cannot donate directly to campaigns and Trump cannot donate to his own campaign without disclosing the transaction, these payments were illegal if they were intended to influence the election. Critically, Cohen admitted that he knew these payments violated campaign finance laws and yet he willfully orchestrated them anyway.
It’s not just Cohen’s word, either: after careful vetting, SDNY prosecutors validated Cohen’s assertion. In its sentencing memo, the SDNY stated: “In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1.” Based on my experience in the SDNY, I am confident that prosecutors would not have included this conclusive sentence in their sentencing submission if they did not have sufficient evidence to corroborate Cohen and charge Trump with the same crimes to which Cohen pled guilty.
Prosecutors have likely not publicized all of this evidence, but we do know about the recording that Cohen’s own lawyer Lanny Davis released in July. That recording revealed a conversation between Cohen and Trump that discussed the creation of a shell company to purchase the rights to MacDougal’s story from AMI, the parent company of the National Enquirer, which had paid MacDougal $125,000 to keep her quiet about her affair with Trump.
Two aspects of that recording jump out in the context of a possible campaign finance fraud case against Trump. First, the recording makes it clear that Trump was aware of the agreement with MacDougal. Secondly, and unrelated to the McDougal-AMI deal, is a remark Trump makes to Cohen about trying to delay the New York Times’ efforts to unseal divorce proceedings with Trump’s first wife, Ivana, until after the election. The conversation is revealing because it highlights how keenly Trump was aware of the importance of suppressing bad publicity until after November 8, 2016. This further supports the case that Trump made hush payments with the express purpose of hiding certain information from the voting public — and not merely to prevent personal embarrassment. Prosecutors would need to prove this were true in order to secure a conviction.
This further supports the case that Trump made hush payments with the express purpose of hiding certain information from the voting public — and not merely to prevent personal embarrassment.
The final hurdle for prosecutors looking to charge Trump with campaign finance fraud would be the requirement of specific intent, which is what separates criminal violations of campaign laws from civil ones. Specific intent requires prosecutors to prove that the defendant knew generally what the law was and willfully violated it. To be sure, campaign finance law is complicated, as Trump’s own lawyer Rudy Giuliani routinely demonstrates with mischaracterizations of the law. Aside from the fact that Trump is presumed to understand campaign finance law when he certified his financial disclosure forms, the cover-up is what truly dooms him here. Trump repeatedly lied about his own knowledge of the Stormy Daniels payment, and failed to disclose it long after it became public. If he had simply made a mistake or didn’t know the details of the law, there would be no reason for him to lie about it or fail to amend his financial disclosures.
In 2011, former presidential candidate John Edwards was acquitted on similar charges, a fact Trump supporters have started citing in defense of the president. But the case against Trump is substantially stronger than the one against Edwards. In response to charges that donors paid his mistress nearly $1 million to suppress the existence of the affair (which yielded a child), Edwards argued that the payments were intended to conceal the ongoing affair from his family, not the voting public. This made the payments simply gifts from friends, not political hush money. Trump cannot persuasively make the same argument. What’s more, Trump tweeted about the Edwards case, further proving his knowledge of campaign finance law.
Trump made multiple payments within weeks of the election relating to affairs that were 10 years old. If Trump truly cared about concealing the affairs from his family, he would have attempted to suppress them closer in time to the affairs or, at a minimum, when Stormy Daniels threatened to go public in 2011. What’s more, Trump made two separate hush payments in the weeks leading up to the election, further connecting those payments to the election. These facts, combined with that damning Cohen recording, clear evidence of a cover-up after-the-fact, and the complex structuring of the reimbursement of Cohen for the Daniels payment, render an Edwards-style defense dead on arrival.
Nor can Trump rely on a defense that he relied on Cohen’s advice, which appears to be his latest attempt to deflect the allegations. Such a defense hinges on following a lawyer’s advice, yet according to Cohen, Trump directed Cohen to orchestrate the hush payments, not the other way around. And if Trump had any conversations about these payments with David Pecker, Trump’s close friend and the chairman of AMI who is a witness for the SDNY, the defense crumbles.
Again, Cohen’s refusal to pursue a full cooperation agreement means he cannot be used to charge Trump. Yet the SDNY and the special counsel’s office believe that Cohen is a credible witness, meaning that if he ever did decide to fully and properly cooperate, the SDNY would unquestionably have the evidence needed to charge (and convict) Trump with felony campaign finance fraud. In the end, Trump likely will not be indicted for campaign finance fraud while in office, but it’s not because he didn’t commit the crime.