President Trump’s former personal attorney Michael Cohen has accused Trump of directing him to commit crimes with the intention of improperly influencing the 2016 election. That is stunning and will have ramifications, I suspect, for voters and every Republican officeholder who does not support an immediate serious investigation by the House and/or Senate Judiciary committees. If the accusations are true, Trump will have committed a crime, should be impeached and, after leaving office, prosecuted. The framers surely would agree that committing a crime in order to obtain the presidency falls in the category of “High Crimes & Misdemeanors.” This is not a prediction of what will occur, but what should follow from our constitutional system.
In case you doubt the strength of the case: Did you notice all the other people implicated in Cohen’s plea? There is “Corporation-1,” presumably American Media Inc. (AMI), which owns the National Enquirer (“Magazine-1”). Members of Corporation-1 (including editor in chief, or “Editor-1”) would presumably have information and be able to corroborate Cohen’s account regarding the Karen McDougal payoff. The information document filed against Cohen also notes the existence of a text between Editor-1 and Cohen, corroboration of the arrangement to pay off a second woman, presumably Stormy Daniels. An encrypted phone call is also mentioned, as is an attorney (one more witness!) who represented both women. And let’s not forget the “executives of the Company” [Trump’s] who “grossed up” the reimbursement to Cohen; that’s two or more additional witnesses. We learn that “Executive-1” received the request or reimbursement and shared it with more executives. More witnesses. In Count 7, Cohen is accused of enabling Corporation-1 to make an illegal corporate campaign donation. That means the company and/or its executives might have liability as well. Count 8 mentions campaign executives (who might they be? how many?) who worked with Cohen to effectuate the scheme.
In sum, it’s not Cohen’s word against Trump’s, but rather a raft of witnesses whom prosecutors have or will be able to talk to (some to avoid liability of their own) and documents as well. There is, in short, a ton of evidence out there concerning the campaign finance scheme to make sure two women didn’t mess up Trump’s chances of getting elected. If Trump learned anything from the Paul Manafort trial, it should be that discrediting a single witness doesn’t eradicate piles of complementary evidence. Trump might try discrediting Cohen, but it’s Cohen who has the corroborating documents and witnesses to back him up.
While the legal implications of Cohen’s plea are stunning, let’s not forget the immediate political ramifications when a president is accused of breaking the law to get elected. Trump was afraid voters’ awareness of two women with whom he had extramarital affairs would wreck his election chance, so a scheme was cooked up to prevent them from finding out. It stands to reason that Trump gained the presidency illegitimately. Certainly 78,000 votes in three critical states might have gone the other way (or 78,000 more Hillary Clinton voters could have shown up to vote). We’ve been considering whether solicitation of help from Russia or former FBI director James B. Comey’s improper interruption of the election with new “evidence” in the Clinton email case means Trump didn’t really win fair and square. But more than these factors, it is very possible that Trump was right — the revelations about Daniels and McDougal, in addition to the “Access Hollywood” tape, could have sunk him. He thought that was the case, so why shouldn’t he pay them off? (This isn’t Watergate, where the break-in was the difference between winning and losing. The irony is that Nixon clobbered George McGovern, meaning the break-in was thoroughly unnecessary.) In considering whether to rush through the swing seat on the Supreme Court without benefit of his whole record, the Senate should ponder how the Supreme Court’s legitimacy would be affected by confirming the pick of a president who allegedly broke the law to get elected. (It is also important to keep in mind that this is just the beginning of the Cohen redemption tale (wherein he regains his reputation and guarantees future income for his family by, as John Dean did, cooperating to take down a corrupt president).
We should also dispense with the notion that Cohen won’t be obligated in some way to cooperate with prosecutors, therefore opening up new leads to pursue. Cohen will still need the prosecutors’ help if he wants a reduced sentence and to avoid other charges from being leveled. It’s inconceivable that Cohen, to obtain the benefit of the plea deal, wouldn’t be required to testify and provide other assistance (e.g. letting prosecutors into his phone). “No way Cohen would’ve entered guilty pleas to eight felony counts in NYC today without either a sealed cooperation agreement or a confidential understanding with [special counsel Robert S. Mueller III], which the plea agreement in [the Southern District of New York] expressly left open,” tweeted constitutional scholar and Supreme Court litigator Larry Tribe. “So he still has key information on Trump to share.”
Cohen has the means and the motivation to expose Trump, at the very least with respect to the payoffs that helped get Trump elected. Cohen therefore not only poses a legal threat to Trump but also has the ability to delegitimize Trump’s presidency. This is big — really big.