Editor’s Note: This piece was first posted on March 29, 2018.
Greetings from beautiful Orange County. We’re getting ready for the second of two Golden State events (we were in San Francisco yesterday), part of National Review Institute’s celebration of Bill Buckley’s legacy a decade after his passing.
For me, the road trip is tacked on to a longer-than-usual vacation. It has ended up being the longest break I have taken from writing in many years — maybe since I started writing full time 15 years ago. I am grateful for the time to think at length about things rather than trying to analyze them on the fly.
Even before detaching, I had mostly stopped watching television news, since there doesn’t seem to be much effort at straight news anymore. When the mainstream media fawned over the Obama administration, I was glad to have the conservative media as an alternative because much of the criticism was pointed and thoughtful. But now that we have an administration I usually agree with on policy led by a president who is, at best, a deeply flawed man, I find the cable coverage almost completely useless. Much of the opposition to Trump is unhinged — though, having had some time to reflect on it, the natural impulse of Trump critics to conflate policy disagreements with personal revulsion over Trump’s character is, if not excusable, at least understandable. Even Trump fans (and there are many we’ve visited with in California) tend to temper their praise with grumbling over the president’s antics. Meanwhile, much of conservative media sounds eerily like the mainstream media during the administration of Bill Clinton, even as comparisons to that deeply flawed man have become the leitmotif of Trump apologia.
On vacation, I contented myself with flipping through news sites and reading books — the best of which were Yuval Levin’s The Fractured Republic and David Bahnsen’s Crisis of Responsibility (and in the making-up-for-lost-time category, I’ve even almost finished Anna Karenina!). Sunday night’s 60 Minutes episode featuring the Stormy Daniels interview was the first news program I’ve watched in a while (mainly because it came on right after the Kansas–Duke thriller). I’ve been on the road ever since, so maybe the snippets of reactive coverage I’ve seen are not fully representative, but they have been awful.
It is simply not a defense of Trump to argue that Clinton did worse. President Clinton, as Fox commentators were wont to remind viewers not so long ago, was not impeached over sexual improprieties. He was impeached over illegal and unethical actions taken to cover up sexual improprieties, the untimely revelation of which might have cost him the presidency. Parading out Juanita Broderick and Paula Jones as a reminder of how bad Clinton was, and how indifferent the media was to how bad Clinton was, does not improve Trump’s perilous position. In the mid-to-late Nineties, we on the right full-throatedly argued that Clinton was unfit for office not merely because of the tawdry behavior (though that certainly was relevant), but because of the fraudulent abuses undertaken to conceal the tawdry behavior, some of which involved actionable misconduct.
The best argument in Trump’s favor is one that claims mitigation, not innocence. It involves the lesson from Clinton’s impeachment that I tried to draw in Faithless Execution: The further removed misconduct is from the core responsibilities of the presidency, the less political support there will be for the president’s removal from office.
This is critical because impeachment is a political remedy, not a legal one. The way the Framers designed the process — which requires just a simple House majority to file articles of impeachment, but a two-thirds Senate super-majority for removal — no president will ever be removed from office absent misconduct egregious enough to spur a consensus for removal that cuts across partisan lines. Such misconduct would surely have to involve either (a) an abuse of power involving core presidential powers; or (b) an extremely serious crime (if unrelated, or only tangentially related, to presidential power).
In making this point, I am obviously assuming that Stephanie Clifford (the pornographic actress better known as Stormy Daniels) is telling the truth about her central allegation: She had a sexual liaison with Trump and was paid $130,000 in hush money close to election time by an agent of candidate Trump (his lawyer, Michael Cohen).
At this point, this central allegation has not been proven. There is no question, moreover, that Ms. Clifford has major credibility problems. She has, for example, signed a statement denying the 2006 sexual encounter (she says she was intimidated and coerced into doing so by Cohen). And by her own admission she is disclosing information that she accepted a six-figure payment not to disclose, under circumstances in which there appears to be a chance for even greater profit — suggesting she is an untrustworthy opportunist. I should therefore explain my rationale for crediting her story to the limited (but significant) extent I do.
A lot of the commentary about Clifford is of the all-or-nothing variety: Staunch Trump critics believe her every word; staunch Trump defenders reject her in toto.
A lot of the commentary about Clifford is of the all-or-nothing variety: Staunch Trump critics believe her every word; staunch Trump defenders reject her in toto. In nearly 20 years as a prosecutor, dealing with countless witnesses of suspect character, I learned that things rarely work that way.
By putting a witness on the stand, the prosecutor is not endorsing the witness’s character. The prosecutor is, however, endorsing the version of events elicited from the witness. That means the prosecutor should elicit only what he believes to be credible, which almost always comes down to what he can corroborate.
There appears to be no doubt at this point that: (a) Cohen paid Clifford $130,000 for her silence; (b) the payment came on the eve of an election that Trump appeared to have little chance of winning and won by the narrowest of margins, meaning disclosure would likely have been fatal; and (c) the agreement went to absurd lengths to obfuscate Trump’s involvement, including the use of pseudonyms for Trump (Dennis Denniston) and Clifford (Peggy Peterson) and the use of an obscure Delaware company (Essential Consultants LLC) as a vehicle to make the payment. Even though Cohen has risibly claimed that he paid Clifford on his own accord, with no involvement by his client (Trump) or the Trump organization, at least two Trump lawyers (Cohen and Jill Martin) have been involved in the energetic legal efforts to keep Clifford silent — efforts that President Trump has now formally joined.
In addition, former Playboy model Karen McDougal similarly claims that she was lured into an election-year agreement to refrain from disclosing an extramarital affair with then-candidate Trump. Ms. McDougal’s agreement was with the parent company of the National Enquirer, whose chief executive is said to be a close Trump friend. As is the case with Clifford, Trump has denied the liaison, and McDougal is in legal proceedings attempting to void the nondisclosure agreement. While McDougal claims that Cohen had a behind-the-scenes role in the NDA, that is far from established.
Putting all of this together, it is reasonable to infer that Clifford was paid for her silence because her claim of a sexual encounter with Trump is true. Quite apart from the fact that the claim has the ring of truth because of Trump’s history, it is not plausible that he would have paid such a large sum to silence someone who was making up a story. If Clifford were lying, Trump would simply have sloughed off her claims, just like he gave the back of the hand to other claims of his roguish behavior made by other women in the run-up to the election. If Clifford were lying, she would not have been paid off and threatened with lawsuits and tens of millions of dollars in damages for failing to comply with the NDA.
In stark contrast, there is presently no publicly known corroboration for Clifford’s most egregious allegation, namely, that an unidentified man threatened her in Las Vegas in 2011. Clifford alleges the man approached her, told her to “leave Trump alone” and “forget the story,” stared at her young daughter, and said, “That’s a beautiful little girl; it would be a shame if something happened to her mom.” Clifford apparently never reported this alleged threat to the police or the media.
Let’s assume that there is no supporting evidence that this incident actually happened, let alone that Trump was complicit in it. In that situation, a competent prosecutor would not base any accusation on it. That is not to say Clifford is lying; it is to say the incident cannot be corroborated and that Clifford’s credibility is not strong enough to level a serious allegation based on nothing more than her word. In a trial situation, the better course for a prosecutor would be to disclose this incident to the defense, but to resist eliciting it in testimony. Then the defense, at its peril, would have to decide whether it was worth cross-examining Clifford about it. Raising it in order to illustrate that the prosecutor did not find her credible would run the risk that the jury would believe Clifford once she explained herself. (I’d wager that most experienced defense lawyers would let sleeping dogs lie.)
It is not persuasive to claim that all of Clifford’s story should be rejected because some of it is suspect and because she is less than a paragon of virtue.
It is not persuasive to claim that all of Clifford’s story should be rejected because some of it is suspect and because she is less than a paragon of virtue. What is truly suspect is to theorize that she was paid $130,000 to keep silent about something that didn’t happen, and that candidate Trump had no connection to a payment made by his lawyer in the crucial weeks right before the election.
To repeat, the point here is not about the lurid details. The point is that the concealment effort may involve criminal violations of campaign-finance laws. That is, a prosecutor could rationally commence an investigation based on suspicion that the $130,000 payment to Clifford was (a) potentially an in-kind campaign contribution that was astronomically above the legal donation limit for individuals, (b) from a potentially illegal source (depending on how Cohen’s LLC, Essential Consultants, was structured), and (c) not disclosed as required by federal election law.
On this score, it does not matter that one may not be a fan of the campaign-finance laws — they are the law, and as we’ve seen, they can be enforced by criminal prosecution. It does not matter that one may not be a fan of the special-counsel appointment of Robert Mueller — he is the prosecutor, and it is a commonplace for prosecutors, and especially quasi-independent prosecutors, to investigate crimes that are disconnected from the original rationale for the investigation (compare, e.g., Kenneth Starr’s shift from Whitewater to the Lewinsky scandal in the investigation of President Clinton). And it does not matter that one may be skeptical about Mueller’s legal theory that any frustration of government functions by two or more people may be prosecuted as a conspiracy to defraud the United States under Section 371 of the penal code — such cases are prosecuted, the U.S. Attorney’s Manual supports them (as I pointed out in a recent column, notwithstanding my disagreement), and actions that undermine the Federal Election Commission’s oversight and record-keeping would align comfortably with the fraud conspiracy charges Mueller has brought in other cases.
As a factual matter, a shoddy cover-up of an extramarital tryst with a porn star a decade before Donald Trump became president would be a trifle compared to the oft-repeated but never established claim of Trump collusion with Russia. As a legal matter, though, when highly aggressive prosecutors are circling, any kind of something is always more perilous than nothing.