Who would have thought that the conviction of his former campaign manager would be the good news for President Trump yesterday?
From a political standpoint, the guilty plea of the president’s lawyer Michael Cohen is the more damaging news. Cohen pled guilty to eight felonies. While the five counts of failure to pay taxes on over $4 million in income are the most consequential to him, most significant to the country are two counts of illegal “in kind” campaign contributions. These, of course, involve $280,000 in hush-money payments made prior to the 2016 election to two women who claim to have had sexual liaisons with Donald Trump, many years before. In entering his guilty plea in Manhattan federal court (the Southern District of New York), Cohen acknowledged that he was directed to make the payments by Donald Trump — referred to as “the candidate.”
Let’s split some legal hairs. The media narrative suggests that these payments violate federal law because they were made to influence the outcome of the election. That is not quite accurate. It was not illegal to pay hush money to the two women — Karen McDougal and Stephanie Clifford (a.k.a. “Stormy Daniels”). It was illegal for Michael Cohen to make in-kind contributions (which is what these pay-offs were) in excess of the legal limit.
Specifically, it was illegal for Michael Cohen to make contributions exceeding $2,700 per election to a presidential candidate (including contributions coordinated with the candidate); and illegal for the candidate to accept contributions in excess of that amount. It was also illegal for corporations to contribute to candidates (including expenditures coordinated with the candidate), and for the candidate to accept such contributions. The latter illegality is relevant because Cohen formed corporations to transfer the hush money.
The law does not impose a dollar limit on the candidate himself. Donald Trump could lawfully have made contributions and expenditures in excess of $2,700 per election. Because of that, and because — unlike Cohen — Trump is a non-lawyer who may not have fully appreciated the campaign-finance implications, it would be tough to prove that the president had criminal intent. Nevertheless, that may not get the president off the hook. As noted above, it is illegal for a candidate to accept excessive contributions. It is also illegal to fail to report contributions and expenditures, and to conspire in or aid and abet another person’s excessive contributions. Moreover, we are talking here about hush-money expenditures, so drawing a distinction between the payment and the failure to report is pointless since the intention not to report is implicit in this kind of payment.
As I argued when news of these pay-offs first emerged, the best arguments President Trump has here involve mitigation, not innocence.
The Justice Department has a history of treating serious campaign-finance transgressions as administrative violations, not felonies. A prominent example: The 2008 Obama campaign accepted nearly $2 million in illegal campaign contributions, but was permitted to settle the matter with a $375,000 fine. Of course, the force of that argument is undermined considerably by the fact that Cohen’s infraction has been treated as a felony (as was Dinesh D’Souza’s comparatively tiny one, also prosecuted by the U.S. attorney’s office for the Southern District of New York).
Still, as we’ve repeatedly pointed out, Justice Department guidance does not permit the indictment of a sitting president. (A president may be prosecuted once he leaves office.) The issue for President Trump is not whether he has committed a crime but whether he has committed a high crime and misdemeanor. On that score, I will repeat what I said about mitigation in the aforementioned column, drawing on the lessons of the Clinton impeachment misadventure in the late Nineties:
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).
The conduct here is not of the egregious nature that rises to high crimes and misdemeanors — it is an infraction committed by many political candidates and often not even prosecuted. More to the point, it is remote from the core responsibilities of the presidency, implicating pre-election actions to conceal alleged indiscretions that occurred a decade earlier. And while the president has denied the indiscretions, it is not like the allegations come as any surprise to the public, who, while well aware of his flaws, elected Donald Trump nonetheless.
Of course, the Constitution vests judicially unreviewable power in the House of Representatives to determine what conduct amounts to high crimes and misdemeanors. We can hope that lawmakers honor the Framers’ guidance, but they cannot be forced to do so. If the Democrats take the House in November by a wide enough margin, expect that the Clinton rally cry — it’s just lies about sex — will no longer be in vogue.
There is lots of spin out there to the effect that the jury’s partial verdict in Paul Manafort’s Virginia federal trial indicates that Special Counsel Mueller is playing a weaker hand than advertised. Don’t believe it. However untidy the verdict may look, and however embattled they may have appeared before a cantankerous judge, prosecutors got a sweep on the tax- and bank-fraud charges that the jury decided.
If the point of the case was to ratchet up the pressure on Manafort to cooperate with investigators, then: Mission accomplished. The 69-year-old defendant now faces a statutory maximum of upwards of 70 years’ imprisonment. And that doesn’t factor in that (a) he is looking at a money-laundering trial next month in Washington, a much friendlier venue for Mueller, and (b) there were no acquittals, so Mueller could also retry Manafort on the ten counts on which the jury hung.
We noted that the jury would not like accomplice witness Rick Gates and would be put off by the sweetheart plea deal he got, which did not include bank-fraud-conspiracy charges. Sure enough, it seems the jury convicted on counts as to which the documentary evidence of Manafort’s unreported income and fraud on financial institutions was overwhelming, but had trouble with charges as to which Gates’s testimony seemed more material. No matter. For Mueller, a win is a win, and this was a win.
The Trump camp continues to stress that Manafort’s case had nothing to do with the original rationale for Mueller’s investigation, “collusion with Russia.” But as we’ve pointed out any number of times, Mueller took over a counterintelligence investigation of Russia’s interference in the 2016 election. Possible Trump-campaign collusion with Russia was just one thread in the larger probe.
At this point, it does not appear that Mueller has a collusion case against Trump associates. His indictments involving Russian hacking and troll farms do not suggest complicity by the Trump campaign. I also find it hard to believe Mueller sees Manafort as the key to making a case on Trump when Mueller has had Gates — Manafort’s partner — as a cooperator for six months. You have to figure Gates knows whatever Manafort knows about collusion. Yet, since Gates began cooperating with the special counsel, Mueller has filed the charges against Russians that do not implicate Trump, and has transferred those cases to other Justice Department components.
When it comes to the president, I believe the special counsel’s focus is obstruction, not collusion. When it comes to Manafort, I believe the special counsel’s focus is Russia — specifically, Manafort’s longtime connections to Kremlin-connected operatives. Mueller may well be interested in what Manafort can add to his inquiry into the June 2016 Trump Tower meeting (arranged by Donald Trump Jr. in futile hopes of obtaining campaign dirt from Russia on Hillary Clinton). That, however, is not the more serious “collusion” allegation that triggered the Trump thread of the investigation — cyberespionage conspiracy (i.e., Russian hacking of Democratic party emails). At this late stage, I’m betting Mueller is most interested in whatever information Manafort might provide regarding potential Russian threats to American interests.
I don’t think the special counsel’s report will accuse the president of collusion. I do think Mueller will try to illustrate that it was reckless for candidate Trump to bring a person of Manafort’s baggage into a high-level campaign post.
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