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Opinion What we learned on Friday

Federal prosecutors filed new court papers on Dec. 7 that revealed a previously unreported contact from a Russian to Trump’s inner circle during the campaign. (Video: Melissa Macaya, Monica Akhtar/The Washington Post)

On Friday, three filings in two federal courts shed considerable light on the legal peril facing President Trump and his associates. A pair of filings in the Southern District of New York, one by prosecutors of the Southern District and one by special counsel Robert S. Mueller III, concerned Trump’s former personal lawyer Michael Cohen’s sentencing. The other document concerned former Trump campaign chairman Paul Manafort and his alleged breach of the plea agreement by, prosecutors claim, lying.

Keep in mind there are two cases whose common element is Cohen. In New York, prosecutors are looking into his alleged conspiracy to violate campaign finance laws implicated in the payoff of two women with whom Trump allegedly had affairs; in the District of Columbia, he provides information on coordination with Russians, the deal for a Trump Tower in Moscow, false testimony to Congress and obstruction of justice.

“Trump was already in trouble on three investigative fronts: collusion, obstruction and campaign finance crimes,” former White House ethics counsel Norman Eisen tells me. "The Cohen memos advance all three: on collusion, with new revelations of the mosaic of contacts with Russia to help Trump, such as the ‘synergy’ conversations with a Russian; on obstruction with the disclosure that Cohen shared his ‘contacts with persons connected to the White House during the 2017–2018 time period’ (this could also be relevant to collusion depending on the content); and on campaign finance crimes with the government’s adoption of Cohen’s account of working with Trump and the Trump Organization on the crimes and the coverup. "

What did we learn specifically about Cohen from the pair of sentencing memorandums? For one thing, the Southern District prosecutors are operating independently from Mueller, on a different case involving different facts that are at issue in Mueller’s investigation. For the Southern District of New York, Cohen has been helpful, but only to a point. The first big takeaway from this document is that prosecutors think the campaign finance crime as a big deal. (Cohen “struck a blow to one of the core goals of the federal campaign finance laws: transparency. … Cohen deceived the public by hiding alleged facts that he believed would have had a substantial effect on the election.”) The second revelation is that prosecutors are convinced Cohen acted “in coordination with and at the direction of Individual-1.” That would be Trump, who prosecutors have concluded was involved in a serious felony. (It’s noteworthy that Cohen was reimbursed by the Trump Organization along with a phony bill for IT services. Others in the Trump Organization may have additional liability.)

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The Post explains that prosecutors claim two separate payoffs directly involved Trump:

At issue are the payments to two women who alleged sexual relationships with Trump before his running for president. In August 2016, Playboy model Karen McDougal reached an agreement with American Media Inc., publishers of the National Enquirer, that ensured she wouldn’t share her story about a lengthy relationship she’d engaged in with Trump. In October of that year, adult film actress Stormy Daniels received $130,000 to similarly stay quiet about a liaison that had occurred a decade before.
Both of those agreements were facilitated by Cohen, as he admitted in court in August. Since Cohen was an agent of the Trump campaign — Cohen was a public surrogate on its behalf and, the Friday filing notes, had a campaign email address — neither payment could be considered an expenditure independent of the campaign but were, instead, campaign contributions in excess of federal limits. That one payment came from AMI meant that Cohen had solicited an illegal corporate contribution as well. Cohen pleaded guilty to two campaign-finance-related charges in August, saying in court that he’d undertaken the actions at Trump’s behest.
Cohen making that claim in court is one thing. The government making the same allegation in a court filing is another.

Possible crimes include “contributions in the name of another, failure to report the contributions, soliciting the illegal contributions, excessive contributions, illegal corporate contributions and acceptance of illegal contributions.” If this ever comes to a criminal prosecution, Trump would have to be shown to have specific intent to violate campaign finance laws.

The Southern District prosecutors think Cohen only grudgingly cooperated. Given the seriousness of his crimes, they want him to receive “a substantial term of imprisonment.”

Mueller sees the sentencing on the tax and campaign finance issues differently because Cohen was apparently very helpful with Mueller’s probe. What did Cohen give Mueller? He went to “significant lengths” to assist Mueller’s team, meeting with them seven times. (That alone should make Trump sweat.) Mueller lets on that he has evidence besides Cohen’s information. Again, the White House is in deep denial if the legal team thinks it can win by discrediting Cohen. To the contrary, there is “other evidence” that lines up with Cohen’s.

Mueller then recites Cohen’s wrongdoing: lying to Congress and publicly and obscuring that “the Moscow Project was a lucrative business opportunity that sought, and likely required the assistance of the Russian government.” (In other words, while running for president Trump was trying to ingratiate himself to the Kremlin to make a whole lot of money).

Cohen also was helpful to Mueller by giving him: (1) information about Cohen’s contacts with the Russians during the campaign; (2) information about “Russian nationals' attempts to reach the campaign" (in 2015, one such Russian talked about creating “synergy on a government level” with Trump, which sounds like an attempt to bargain favors back and forth on behalf of governments); (3) information “concerning discrete Russia-related matters core to the investigation that he obtained by virtue of his regular contact” with Trump Organization executives (who were these executives? what did Cohen learn); and (4) important information concerning Cohen contacts with White House-related people in 2017-2018. (Again, who are these people? Is this part of the obstruction investigation?) In short, Mueller is showing all the ways Cohen was helpful in implicating others and suggesting he has multiple sources of evidence. Trump and any aides or lawyers involved in communication with Cohen about false testimony or pardons or the Russia probe may be in serious legal jeopardy.

Then there is Manafort, who Mueller said lied about a bunch of things. To begin with, we learn that Manafort was communicating with “a senior Administration official up through February 2018.” (Emphasis added.) That person better lawyer up since this sounds like a conspiracy to obstruct justice, perhaps trading a pardon for Manafort’s silence. Manafort was also stupid enough to send a text to administration officials (more than one) on May 26, 2018. These administration officials and anyone they coordinated with are potentially in a great deal of legal trouble.

Manafort also lied, according to Mueller, regarding his contacts with Konstantin Kilimnik and a wire transfer to a firm working with Manafort. It is not clear whether these are related to Trump or other officials, or simply concern Manafort’s financial improprieties. There is also a curious reference to “another Department of Justice investigation” about which Manafort lied. Is this obstruction? Does it concern Trump or a Trump relative? We don’t know.

To sum up: Trump has been implicated in a very serious crime that subverted democracy (according to the Southern District of New York) and should be worried about what Cohen has shared with prosecutors relating to Russia and the Moscow tower project as well as possible obstruction continuing up to 2018. Manafort also seems to be a window into possible obstruction by virtue of his contacts with administration officials. In catching Manafort lying about “another Department of Justice investigation,” Mueller is suggesting more evidence exists (which contradicted Manafort, and maybe the president).

“The past week should be a game changer for how Washington thinks about the direction of the Russia investigation,” says Max Bergmann of the Moscow Project. “Before this, a common and reasonable view espoused by Mueller watchers was that maybe the investigation wouldn’t implicate Trump or find evidence of collusion.' But there is just no doubt where Mueller is headed now. He is headed for Trump and is focused like a laser on the question of collusion.” Bergmann notes, “He’s identified the Trump campaign’s efforts to coordinate with WikiLeaks, and he has Trump’s personal lawyer and his national security adviser providing materially relevant information about the Trump campaign conspiring with Russia. It is becoming clearer and clearer by the day that this is the biggest political scandal in American history.”

Aside from the obvious thoroughness and competence and the utter lack of both by the Trump crowd, we should be pleased on four counts.

First, facts matter; evidence matters. It doesn’t matter what Trump tweets, because we aren’t talking about snowing willing dupes in the Fox News audience; the courts and/or Congress will have cold, hard evidence to assess Trump’s conduct.

Second, the prosecutors (both in the the Southern District of New York and in Mueller’s office) appear to be acting without substantial interference. They continue to do their job after acting attorney general Matthew G. Whitaker took over.

Third, Trump won’t be able to put the toothpaste back in the tube by firing Mueller or blocking the report; Mueller is presenting his case to the public through these legal filings. The Justice Department and the courts are holding their own against a lawless presidency. Both Manafort and Cohen substantiate contacts with those close to Trump up through this year, powerful evidence (if the content concerns the probe of their testimony) of obstruction. Former White House counsel Bob Bauer explains:

For some time, the question of obstruction revolved entirely around the true reasons for Mr. Comey’s firing. Mr. Trump’s lawyers have argued that the president was within his constitutional rights to fire Mr. Comey for any reason — and that, in any event, he had such a reason. They point to the controversy over Mr. Comey’s handling of the Clinton email investigation, and they stress that Deputy Attorney General Rod Rosenstein provided the president with a particularly damning memorandum making the case for the former director’s breach of departmental procedures and standards.
But none of these complexities are present in the Cohen, Manafort and Flynn cases. In those, the president and his agents may have simply sought to undermine lawful inquiries. It bears remembering that when the House Judiciary Committee voted articles of impeachment against Richard Nixon in 1974, Article 1 included a charge against him for lying to Congress. The impeachable conduct was defined to include “condoning” and “acquiescing in,” not only “approving” and “counseling,” false testimony.

Fourth, this is no witch hunt. It is, however, becoming a horror show for Trump and those who enabled him.

Read more:

Randall D. Eliason: The hush-money payments are a sideshow. Mueller just added key pieces to Russia puzzle.

Harry Litman: What to watch for in Friday’s Mueller filings

Paul Waldman: The latest filings show that nobody can save Trump now

Brian Klaas: The Mueller investigation has been a series of drips. It’s about to turn into a flood.

Jennifer Rubin: What the Senate must ask William Barr