Democracy Dies in Darkness

National Security

Cohen’s claim about Trump may spark calls for impeachment but is unlikely to lead to charges

August 21, 2018 at 8:07 PM

Watch more!
President Trump’s former lawyer Michael Cohen pleaded guilty to multiple crimes in August and November. On Dec. 12, a federal judge sentenced him to three years in prison. (Monica Akhtar/The Washington Post)

The assertion by President Trump’s former lawyer that he broke campaign finance laws at the direction of then-candidate Trump could spark calls for impeachment hearings — but probably will not have any legal consequences for the president while he is in office, according to legal analysts.

Michael Cohen, who spent a decade as a lawyer for Trump, told a judge Tuesday that he was directed by Trump to coordinate payments to two women designed to prevent them from disclosing alleged affairs with the real estate mogul before the presidential election, in violation of campaign finance law.

Such an explosive assertion against anyone but the president would suggest that a criminal case could be in the offing, but under long-standing legal interpretations by the Justice Department, the president cannot be charged with a crime.

The department produced legal analyses in 1973 and 2000 concluding that the Constitution does not allow for the criminal indictment of a sitting president.

Related: [Read Michael Cohen’s plea agreement]

Those opinions have never been tested in court, and doing so would require a prosecutor to buck the department’s guidance and attempt to bring charges anyway.

In comments to reporters after Cohen pleaded guilty to eight felony counts in federal court in Manhattan, Deputy U.S. Attorney Robert Khuzami said prosecutors were sending a message that they are unafraid to file charges when campaign finance laws are broken. But he did not mention Trump or offer any indication that his office planned to pursue action against the president.

Likewise, special counsel Robert S. Mueller III determined months ago that allegations of campaign finance violations involving payments to women before the presidential election were outside the scope of his mandate to investigate whether the Trump campaign coordinated with Russia’s operation to influence the vote.

That would leave impeachment as the more likely avenue for holding Trump accountable for his alleged role in campaign finance violations in 2016, an unlikely outcome while Republicans hold Congress but a potential agenda item for Democrats should they take control of the House after the midterm elections.

Democrats have been split on whether calling for Trump’s impeachment is politically astute before November. But Cohen’s plea could revise that calculation and pressure Democrats to promise to launch hearings should they win the House, which has the constitutional authority to initiate impeachment proceedings.

“This is a very big deal. The president of the United States has been directly implicated in federal crimes, and implicated not by some enemy but by his own personal lawyer,” said Neal Katyal, a U.S. solicitor general in the Obama administration and now a white-collar criminal defense attorney at the firm Hogan Lovells.

He said it was the first time the nation had faced a similar situation since Watergate, and he predicted that it would launch “the call for impeachment proceedings.”

Cohen entered his plea in New York at nearly the same moment that Trump’s former campaign chairman, Paul Manafort, was convicted by a jury in Northern Virginia on eight counts of tax and bank fraud brought by Mueller.

Watch more!
The Supreme Court has never weighed in directly on what can or can't happen to a president. The Fact Checker explains the current legal landscape. (Meg Kelly/The Washington Post)

While Manafort’s conviction does not directly implicate Trump, it will bolster the special counsel investigation, which has now secured its first trial victory, and add to the political pressure and sense of legal siege around the president. Now facing the real prospect of hard time, analysts said, Manafort might try to strike a deal and agree to cooperate with investigators.

Related: [The spectacular rise and fall of Paul Manafort]

“The combination of the Manafort conviction and the guilty plea by Michael Cohen creates a legal maelstrom for the president’s lawyers, who now have to do battle on two fronts, fending off unrelated charges that both involve individuals who were at one time close to the president,” said Robert Mintz, a former federal prosecutor who now works at the firm McCarter & English.

While Cohen agreed that he had committed illegal acts in his personal business, he also pleaded guilty to two felony counts of campaign finance violations that directly involve Trump and his inner circle.

Details in court documents match payments made to former Playboy model Karen McDougal and adult-film star Stormy Daniels, both in amounts that exceeded legal campaign finance limits. Both women have alleged that they had sexual encounters with Trump, which he has denied.

In August 2016, McDougal was paid $150,000 by American Media Inc., the parent company of the National Enquirer, for the rights to her story, which the company then shelved. In October 2016, Cohen used a home-
equity line of credit to finance a $130,000 payment to Daniels.

Cohen told a judge that he directed the payments “for the principal purpose of influencing the election” and “in coordination with and at the direction of a candidate for federal office” — a reference to Trump.

Randall Eliason, a former federal prosecutor who now teaches law at George Washington University, said that statement “potentially implicates Trump in aiding and abetting the campaign finance violation, or in a conspiracy.”

Eliason said Cohen’s assertion could result in a formal finding by Mueller or another prosecutor that the president violated the law. He said the Justice Department opinions mean, however, that prosecutors would be unlikely to file charges: “Then the remedy becomes political rather than criminal — would a finding of criminal conduct by the president lead the Congress to impeach him?”

For Mueller, the more significant development of the day might have been Manafort’s conviction on eight felony counts of bank and tax fraud. Experts said federal sentencing guidelines call for Manafort to potentially receive between seven and 10 years in prison, roughly the same as if he had been convicted on all 18 counts he faced.

Timothy Belevetz, a former federal prosecutor now with the firm Holland & Knight, called the verdict “an important milestone” for Mueller’s team.

“So far, the office has charged more than 30 individuals and has secured a number of guilty pleas, which is not insignificant,” he said. “This is a big win for the special counsel.”

Rosalind Helderman is a political enterprise and investigations reporter for The Washington Post. She joined The Post in 2001.

Matt Zapotosky covers the Justice Department for The Washington Post's national security team. He has previously worked covering the federal courthouse in Alexandria and local law enforcement in Prince George's County and Southern Maryland.

Devlin Barrett writes about national security and law enforcement for The Washington Post. He has previously worked at the Wall Street Journal, the Associated Press and the New York Post, where he started as a copy boy.

Post Recommends

We're glad you're enjoying The Washington Post.

Get access to this story, and every story, on the web and in our apps with our Basic Digital subscription.

Welcome to The Washington Post

Thank you for subscribing