No, President Trump insisted, he knew nothing about a $130,000 hush-money payment to a porn star who claims she had an extramarital sexual encounter with him over a decade ago. Reporters in the impromptu Air Force One gaggle persisted: Why, then, would Trump’s private lawyer and self-described “fixer,” Michael Cohen, make such an extraordinary payment on the eve of the 2016 election?
“You’ll have to ask Michael Cohen,” replied the president.
Less than a week later, the FBI executed court-authorized warrants at Cohen’s New York City office and residences. Among other things, the Bureau and federal prosecutors in New York are investigating the circumstances of Cohen’s money transfer to Stephanie Clifford (the adult-film, er, performer known as Stormy Daniels). Enraged, Trump and Cohen now contend that the attorney–client privilege should bar investigators from perusing the seized files. But on what basis? Trump has denied that he had any knowledge of the matter; and, just as rashly and implausibly, Cohen maintains that he paid Clifford on his own, without informing Trump. Thus did they eviscerate any claim that there could be attorney–client communications. The FBI will comb through every document.
Politically, Donald Trump’s shoot-from-the-hip style plays well in an era of populist revulsion at fork-tongued Washington. Legally, it is suicidal.
Not without reason is the president confident in his knack for navigating through crises, often self-inflicted, and often dodged by instigating new crises. But while politics can be tricky, law-enforcement investigations pose real jeopardy. Trump, a Roy Cohn client from the cutthroat arena of New York real estate, may think he knows litigation. But this is different. He needs a well-conceived legal strategy.
Mind you, this is not a suggestion that Trump fabricate a story to meet the evidence. Lying, or at least talking without thinking, is what gets people in trouble. The survival of Trump’s presidency may depend on a skill alien to his nature: strategic silence.
Investigators are scrutinizing ambiguous acts: Trump’s tongue-in-cheek hope that the Russians hacked Hillary Clinton’s emails, his pressuring the FBI to drop the Michael Flynn investigation, his firing of FBI director James Comey, and so on. Liability for such inchoate crimes as conspiracy and attempts to obstruct justice may hinge on whether prosecutors can convincingly portray his intentions as corrupt. Trump’s doth-protest-too-much resort to overkill in response to trivial slights and innuendo often makes him look guilty even when he probably isn’t. The very able prosecutors on special counsel Robert Mueller’s staff and in New York do not need the help. Can the Trump we know refrain from minute-by-minute recitations of what Trump was thinking about what Trump was doing — recitations that tend, shall we say, to evolve?
The president faces danger on three fronts.
The good news for Trump is that the most egregious allegation, treasonous “collusion” with Russia, poses the least peril. The very fact that the Democrats and their media echo chamber made “collusion” the buzzword of their narrative is revealing: Collusion is not a crime per se; it is merely concerted activity and can even be benign, despite the word’s current dark connotation. What prosecutors care about is conspiracy — a collaboration aimed at violating the criminal law (e.g., hacking, or what the intel community calls “cyberespionage”). Notwithstanding a torrent of leaks by Trump’s detractors in the spy agencies, and James Comey’s decidedly underwhelming anti-Trump memoir, conspiracy evidence has not materialized.
Mueller has charged several people connected to Trump’s campaign but leveled no allegations of complicity in Russia’s election meddling. In fact, in an indictment charging numerous Russian nationals and businesses with amateurish cyber-schemes to interfere in the campaign, Mueller asserts that Russian outreach to the Trump campaign was pretextual, not coordinated, and that the Russians actually demonstrated against Trump. Putin’s objective, it appears, was to sow discord in our society regardless of who won the presidency, not to engineer one candidate’s victory over the other — something manifestly beyond the Kremlin’s capabilities.
Bear in mind that the Russia investigation was already ongoing for a year when Mueller was appointed in May 2017. If there were a collusion case, we would know it by now. As a proxy for proof, there has been an assiduous media-Democratic effort to goad the irascible Trump into firing the special counsel, and to report at fever pitch any inkling that Trump may fire both Mueller and Deputy Attorney General Rod Rosenstein, who appointed Mueller (because Attorney General Jeff Sessions had recused himself from the investigation — another ever-thrumming cause of Trump tantrums). There appearing to be no proof of actionable collusion, the specter of Mueller’s dismissal, like the actual dismissal of Comey, which spurred Mueller’s appointment, fuels the narrative that Trump is conscious of his guilt and fears the investigator is closing in. Trump must keep his cool. Every Twitter tirade about the “witch hunt,” every offhand comment about Mueller’s status, provides the investigative rationale to keep digging.
The second front involves claims that Trump committed felony obstruction, on which Mueller’s sights have been trained as the prospect of proving collusion has faded. Yet the president has strong defenses. Legally, it is very unlikely that allegedly corrupt intent can convert a lawful exercise of presidential power — e.g., firing the FBI director or pardoning a potential witness Mueller is trying to squeeze — into a crime. Such executive prerogatives are judicially unreviewable. The Watergate and Clinton precedents instruct that illegal acts by a president intended to subvert an investigation — e.g., bribing witnesses or suborning perjury — may constitute obstruction. Thus far, there is no hint of that.
The factual underpinnings of the obstruction claims have always been a stretch, and they seemed to crumble with the recent release of Comey’s memos-to-self about conversations with Trump (just days after his memoir was published). The former FBI director, who certainly did not act like someone who thought he’d been obstructed when Trump expressed hope that he’d leave Flynn alone, has coyly said he believes he was “fired because of the Russia investigation.” Well yes, but only in the sense that Trump wanted the public to know what Comey was privately assuring him, namely: He was not a suspect in the Russia investigation. Trump never tried to stop the investigation. In fact, he said it would be good to find out if any of his underlings acted corruptly, and he encouraged Comey to run down the so-called Steele dossier’s salacious allegations about prostitutes in Moscow, confident that he would be vindicated.
Trump continues to seethe over being under a cloud of suspicion. But if he can resist thoughtless outbursts and rash firings, the obstruction claim should collapse of its own weightlessness.
The third front for Trump, the investigation of Cohen, is the wild card. Mueller referred it to federal prosecutors in New York, which he surely would not have done if Cohen were thought potentially helpful to the Russia probe or any related case against Trump. Rosenstein, moreover, has reportedly advised Trump that he is not a target of the Cohen probe. It would be a mistake to read too much into that assurance; if Trump is a subject of the investigation, he could quickly become a target — a term of art for a suspect likely to be charged — depending on what evidence turns up. Still, prosecutors have advised the court that their case focuses on Cohen’s activities, only some of which involve either Trump or the practice of law.
The best-known work Cohen has done on Trump’s behalf is unsavory: non-disclosure agreements (NDAs) to conceal extramarital sexual encounters. But NDAs are not illegal per se; to establish a crime, prosecutors must show they were induced by fraud or extortion. Right now, that seems like a reach. Lavish payments for an NDA on the eve of an election could conceivably be deemed in-kind contributions in excess of campaign-finance limits. But such transgressions are almost always handled administratively by the Federal Election Commission, not prosecuted by the Justice Department.
Nevertheless, the FBI did seize a large volume of paper and electronic files from Cohen, and they had been monitoring his emails for months (there are, investigators say, no email exchanges with the president). While Trump is apparently not the focus of the case, the investigation is ongoing, and only Trump and Cohen know what the “fixer” has been asked to fix.
The president is a difficult client, and his legal team is in constant flux. In mid April he retained his longtime friend Rudy Giuliani to take the helm. It is a smart move: Giuliani (who hired me as a prosecutor many moons ago) is a legendary former prosecutor and legal strategist, as well as a former mayor of New York. He and Mueller know and respect each other, and as U.S. Attorney in Manhattan, Giuliani left an indelible mark on the office that is now running the Cohen probe. His objective is to bring the Trump aspect of Mueller’s investigation to a prompt end. Mueller still wants to interview the president. Even if Giuliani deftly negotiates limits on the questioning, such a session would be fraught with peril: Trump is prone to contradictory assertions, and Mueller has already convicted four subjects in the probe of lying during voluntary interviews.
From this former prosecutor’s vantage point, silence is golden. But as @realDonaldTrump’s 51 million Twitter followers will tell you, don’t bank on it.