President Trump picked an interesting day to insist that he and his allies had scrupulously avoided breaking the law.
That was about 6:45 a.m. Eastern. About four hours later, Trump’s former personal attorney Michael Cohen stepped out of his apartment building in Manhattan for a ride to the federal prison where he’s slated to spend the next several years.
The campaign finance violations
Trump’s supporters are quick to point out that Cohen’s punishment is largely a function of crimes he committed that are independent of Trump. He admitted in federal court to several acts of tax and bank fraud that were a function of his personal actions.
But he admitted to two other crimes, as well. One was that he solicited an illegal campaign contribution from a corporation and the other that he himself had made a contribution over the legal limit to a federal campaign. In each case, the campaign was Trump’s. And in each case, Cohen said under oath that he had taken the illegal actions at the behest of the candidate himself.
Both crimes relate to hush-money payments made in late 2016 to bury allegations from women who said they had engaged in affairs with Trump. In one case, Cohen (and, allegedly, Trump) worked with the parent company of the National Enquirer to pay off former Playboy model Karen McDougal so that her story wouldn’t become public. In the other, Cohen made a substantial payment to adult film actress Stormy Daniels to prevent her from talking about an encounter she says she had with Trump.
Those crimes were part of what the sentencing judge in Cohen’s case called a “veritable smorgasbord of fraudulent conduct,” with the judge noting that each of the crimes to which Cohen had admitted guilt was “a serious offense against the United States.”
Why were those contributions a criminal offense? We’ve covered this in depth, but the short version is that individuals were allowed to give only $2,700 to Trump’s campaign, and corporations couldn’t give money at all. Because the payments to McDougal and Daniels were meant to influence the election in coordination with the campaign — as asserted by Cohen and, in McDougal’s case, the Enquirer’s parent company — the money that was spent was subject to the above limits. Trump was directly implicated in Cohen’s campaign finance crimes.
So why wasn’t Trump charged? One important reason was probably that the Justice Department has a standing legal opinion from the department’s Office of Legal Counsel barring the indictment of a sitting president.
The evidence of obstruction
That opinion became important in the wake of the release of a redacted version of special counsel Robert S. Mueller III’s report on his investigation into Russian interference in the 2016 election. The second volume of that report details 10 separate incidents in which Trump appeared to have been trying to impede Mueller’s investigation. In five of those incidents, as The Washington Post’s Aaron Blake reported, Trump appeared to have met the three conditions that would normally have applied for considerations of prosecution.
But Mueller didn’t allege that Trump broke the law because, as he wrote in the report, he felt that the OLC opinion essentially precluded such a decision. Instead, he sought to gather evidence of what happened and, if possible, exonerate Trump on the question.
“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state,” the report reads. “Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”
With Mueller declining to offer an opinion on whether Trump’s actions were prosecutable, Attorney General William P. Barr stepped in: They weren’t, Barr said.
On Monday, a number of former Justice Department officials stated that they disagreed. The idea that Trump had violated the law by obstructing justice gained traction with the release of a public letter signed by nearly 400 former federal prosecutors, making that argument explicitly.
“As former federal prosecutors, we recognize that prosecuting obstruction of justice cases is critical because unchecked obstruction — which allows intentional interference with criminal investigations to go unpunished — puts our whole system of justice at risk,” the letter reads. “We believe strongly that, but for the OLC memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller Report.”
In other words, just as active federal prosecutors believed that Trump was involved in Cohen’s violations of campaign finance law, these former prosecutors think that Trump could be shown to be guilty beyond a reasonable doubt on the question of obstruction.
When Cohen came before Congress this year to discuss his time working for Trump, he made a number of other sweeping assertions about Trump’s past behavior that remain largely untested. Some of the claims he made spurred new investigatory angles by Democratic lawmakers. There also exist questions about other issues that Mueller couldn’t resolve, like the extent of Trump’s awareness of his campaign team’s interactions with Russian actors and go-betweens like WikiLeaks. Mueller’s report stated explicitly that “the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.”
Put another way, there may be more crimes that were committed that are sitting just beneath the surface.
For the broader point, though, those are unnecessary. On Monday, Trump’s attorney went to prison in part for his admitted role in campaign finance violations that implicated the president. A few hours later, some of Trump’s efforts to derail Mueller’s investigation were described as provably criminal by a number of former federal prosecutors.
Right after Trump had granted himself a blanket rhetorical pardon.