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Book: The DOJ almost implicated Trump more directly in a crime

President Donald Trump stops to talk with reporters about Michael Cohen in 2018. (Jabin Botsford/The Washington Post)

It was a shocking enough document as it was. Donald Trump’s former lawyer, Michael Cohen, had pleaded guilty to illegally concealing hush money paid to two women who were accusing Trump of extramarital affairs. The 2018 charging document implicated Trump, named as “Individual-1,” notably by saying he attended a meeting about how he might quash any negative stories about his relationships.

And it might have implicated Trump even further, then-U.S. Attorney Geoffrey Berman now says — were it not for the kind of politically tinged meddling that he says was endemic in the Trump Justice Department.

The New York Times last week briefly noted that Berman’s new book alleges that a Justice Department official tried to get references to Trump removed from the Cohen charging document. And now that the book is out, we have Berman’s fuller account of the events.

Many references to “Individual-1” were left in the document, but Berman says the pressure led to it being watered down. Specifically, he says the document was changed to remove references to the idea that Trump acted “in concert with” and “coordinated with” Cohen to make illegal campaign contributions.

Berman alleges this was done in response to pressure from Edward O’Callaghan, the principal associate deputy attorney general:

O’Callaghan proceeded to identify specific allegations that he wanted removed, almost all referencing Individual-1. It quickly became apparent to [Berman’s deputy Robert S.] Khuzami that, contrary to what O’Callaghan professed, it wasn’t the overall length or detail of the document that concerned him; it was any mention of Individual-1. Khuzami and O’Callaghan went through a handful of these allegations, some of which Khuzami agreed to strike; others, to ensure a coherent description of the crime, he did not.
Sensing that this was going to be a long and adversarial process, Khuzami told O’Callaghan that he was now aware of O’Callaghan’s concerns and the team would redraft the information and remove certain nonessential details.
The team was tasked with the rewrite and stayed up most of the night. The revised information, now twenty-one pages, kept all of the charges but removed certain allegations, including allegations that Individual-1 acted “in concert with” and “coordinated with” Cohen on the illegal campaign contributions. The information now alleged that Cohen acted in concert and coordinated with “one or more members of the campaign.”

O’Callaghan has denied another action that Berman attributed to him — pressuring Berman’s office to prosecute Democratic lawyer Gregory B. Craig to “even things out” after it had prosecuted two prominent Trump allies. He called the statements attributed to him “categorically false.” He didn’t immediately comment on being named in this episode.

But precisely how big a difference was there between the draft charging document and the final version?

To be clear, the document still ultimately said that, “as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1.” That clearly implicated Trump in the scheme, to some degree. But it said Trump was involved in the payments and not necessarily that he did something illegal himself.

Where Trump’s role was watered down, according to Berman, was in places where the document more directly linked a number of unnamed individuals to the larger scheme.

The final version said (key parts bolded): “Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments.” It added at another point that Cohen “knowingly and willfully made and caused to be made a contribution to Individual-1 … and did so by making and causing to be made an expenditure, in cooperation, consultation, and concert with, and at the request and suggestion of one or more members of the campaign.”

Berman says this was emblematic of the kind of unsavory political pressure he faced throughout his tenure — something that will now be the subject of a Senate investigation.

“This was part of an emerging pattern,” he wrote. “If we held our ground with Main Justice, we could usually avert the worst consequences of their interference. But the game they played was nonetheless wrong and dangerous.”

He also wrote, though, that he was comfortable with the final document, which contained “everything that truly needed to be in” it. He noted that Cohen later more directly implicated Trump himself.

But it’s worth noting that there is a difference between this coming from Cohen — a felon with credibility issues and plenty of motivation to inform on his former boss — and being stated flatly by the Justice Department itself. What made the charging document so significant was that it came from prosecutors who might have to back up their carefully chosen words with evidence. Indeed, you could make a compelling argument that the moves to water down the document show how the political pressure decried by Berman worked, to some degree.

In an interview with The Washington Post, Berman reiterated that he was comfortable with how the process ultimately played out.

“I think that the charging document kept its integrity, even with certain references to ‘Individual-1’ being taken out,” he said. “There was an incrementalist approach we took to these interferences from Main Justice. And at the end of the day, Cohen in open court identified who gave him instructions.”

Berman said the investigators still had all the information they needed to investigate. Trump has never been charged in connection with the hush-money scheme.

Indeed, the charging document’s mentions of Trump might not have mattered for any potential prosecution. But there’s also the court of public opinion — and the hush-money scheme was one of the biggest scandals of Trump’s presidency. Shortly after the charging document was released in late 2018, it registered as the scandal in which the most Americans — nearly 8 in 10 — said Trump had acted either illegally (38 percent) or unethically (40 percent).

There are valid reasons that documents like the one in the Cohen case might be reined-in. These include that certain information might not have been reviewed by a grand jury. Another is that the Justice Department doesn’t want to impugn those who aren’t charged with crimes. (That’s why prosecutors refer anonymously to those not charged, although it was obvious who “Individual-1” was.)

But Berman says this was symptomatic of a larger campaign within the Trump Justice Department. And without that campaign, he suggests, we might have seen Trump implicated even more directly in the hush-money scheme — and officially so.