President Trump’s defense against allegations that he directed Michael Cohen to carry out criminal hush-money payments on his behalf is essentially as follows: Cohen was his longtime fixer, and all Trump did was ask him to fix a problem -- that is, to do his job.
Trump never directed Cohen to break any laws in doing that. It was on Cohen to fix the problem legally. If Cohen failed in this regard, that’s on him.
It is in the fixer’s job description, after all, to make problems disappear for the boss. Making problems disappear also entails making sure that the means of making them disappear don’t by themselves create more problems. Disappear means disappear. Capisce?
But now Cohen has given a new interview to ABC News that deals this defense another big blow.
First, ABC’s George Stephanopoulos got Cohen to state clearly that in directing payments designed to silence women who alleged affairs with him, Trump both knew he was engaged in wrongdoing and consciously understood that he directed the payments on behalf of his presidential candidacy:
STEPHANOPOULOS: He’s saying very clearly that he never directed you to do anything wrong. Is that true?
COHEN: I don’t think there’s anybody that believes that. First of all, nothing at the Trump Organization was ever done unless it was run through Mr. Trump. He directed me … to make the payments. He directed me to become involved in these matters.
STEPHANOPOULOS: And he knew it was wrong?
COHEN: Of course.
STEPHANOPOULOS: And he was doing that to help his election?
COHEN: Yeah. You remember, at what point in time that this matter came about, two weeks or so before the election, post-Billy Bush comments. So yes, he was very concerned about how this would affect the election.
STEPHANOPOULOS: To help his campaign.
COHEN: To help him and the campaign.
The timing that Cohen just established is critical. Remember that in early October of 2016, the video of Trump boasting about committing sexual assault with impunity exploded in the campaign. Cohen made the payment to Stormy Daniels later that month, and according to New York prosecutors, this payment, like the other one to Karen McDougal, was made “in coordination with and at the direction” of Trump, with the “intent to influence the 2016 presidential election.”
The timing matters because it is very plausible to assume that Trump thought one more such revelation, coming after the video, would permanently destroy his campaign. So this payment — like the other one, but even more so — appears to be all about his candidacy, a crucial element in making this a criminal campaign-finance violation. What’s more, Cohen has now flatly told ABC in two different ways that for Trump, the payments were indeed all about his campaign.
To understand why all this matters, it’s crucial to note that in embedded in all those Trumpian tweets about these revelations, Trump is actually making a legal argument in his defense. Trump is no longer denying that he directed the payments. Instead, he’s claiming that in so doing, he “never directed” Cohen to “break the law,” and that the payments weren’t a “campaign finance” violation. Trump merely directed Cohen to carry out a “private transaction,” which Cohen was supposed to somehow conduct in a legal manner. If Cohen failed at this, he’s the lawbreaker, not Trump.
As Harvard law professor Noah Feldman explains, Trump’s defense is that he “didn’t direct Cohen to commit the violations, because Cohen was Trump’s lawyer and devised the payoff structure on his behalf.” But Cohen is now directly contesting this point. He is telling ABC News that Trump understood that he was directing a payment that was indeed illegal.
Of course, this is merely Cohen’s word against Trump’s. The rub would be to prove that Trump did in fact know the payments were illegal. And that’s why this exchange from the ABC interview is also important:
STEPHANOPOULOS: You pleaded guilty to lying to Congress.
STEPHANOPOULOS: So why should we believe you now?
COHEN: Because the special counsel stated emphatically that the information that I gave to them was credible and helpful. There’s a substantial amount of information that they possess that corroborates the fact that I am telling the truth.
This claim that prosecutors are in possession of a “substantial amount of information” validating Cohen’s version of events will likely shake the White House very deeply. After all, we have reasonable grounds for believing this to be the case. First of all, it’s true that special counsel Robert S. Mueller’s sentencing document about Cohen does say that prosecutors believe the information he’s provided is “credible” and “truthful.”
Second, there’s the fact that the New York prosecutors accept Cohen’s version of events. Their sentencing document doesn’t just quote Cohen claiming Trump directed illegal payoffs with the express purpose of influencing the election; it also says this is their view as well. If they are making this claim, they all but certainly have evidence of it, or at least they believe it’s provable. What’s more, they also say Cohen and the Trump Organization — Trump’s company — went to elaborate lengths to conceal the payments. Based on facts such as these, even Russia probe skeptic Andrew McCarthy has concluded that prosecutors do believe Trump is implicated — and that he likely faces indictment, though probably not until he leaves office.
“The prosecutors believe they have sufficient evidence to prove that Trump directed Cohen to make the payments in order to influence the election,” Feldman told me in an interview. “The nature of the evidence probably has to do with the timing and the aim of keeping the payments secret. But it could potentially go beyond that.”
One big unknown is this: Even if Trump did direct the payments with the deliberate intent of influencing the election, did he know this was illegal? We’ll have to wait to learn the answer. If not, then it’s conceivable that Trump’s defense could hold up — that all he did was ask his fixer to fix things. The problem for Trump is that this arrangement — and the illusion it is designed to create — falls apart when your fixer stops doing your fixing, and turns on you instead.