On Tuesday, in what turned out to be one of the blockbuster news days of the year—which is saying something—the president’s former campaign chairman, Paul Manafort, was convicted on eight counts of fraud in a case brought by Robert Mueller’s investigators. Meanwhile—or, actually, simultaneously—the president’s infamous onetime fixer, Michael Cohen, pleaded guilty to tax evasion and bank fraud, and, even more momentously, claimed that Donald Trump directed him to make illegal payments to two women during the campaign. This was apparently done in order to keep them quiet about affairs they say they had with the president.
To talk about what this means for the Trump presidency and the ongoing Mueller investigation, I spoke by phone with Jeffrey Toobin, a staff writer at the New Yorker and CNN’s chief legal analyst. During the course of our conversation, which has been edited and condensed for clarity, we discussed whether pardoning Manafort would cause legal trouble for Trump, why Democrats taking the House could lead to more Cohen revelations, and the real importance of Tuesday’s momentous few hours of news.
Isaac Chotiner: After the Manafort and Cohen news broke, you tweeted, “It may be that the Trump presidency will be divided into pre- and post-August 21, 2018 periods.” What do you think really might have changed today?
Jeffrey Toobin: There is one specific and one general thing that have changed. The specific thing is that you have the president directly and explicitly accused of criminal conduct, which is very substantially different from where we have been before. There remain complex legal questions about what kind of collusion is unlawful, and whether a president can obstruct justice by firing the director of the FBI. Those are complicated and interesting questions. But it is beyond doubt that a candidate for president can violate campaign finance law. That’s not a complicated legal question. Now, obviously, the Trump forces will say that Michael Cohen is just a liar, and he may be. But the direct implication of the president of the United States in criminal behavior is very different.
The general thing is that here you have on the same day, within an hour of one another, the chairman of the president’s campaign, and his personal attorney and close associate, both convicted of or pleading guilty to serious felonies. That, in and of itself, is a profound thing and something you can’t say about virtually any president, except maybe Richard Nixon. Just the overall stench of those double-barreled developments is a serious thing.
I don’t want to sound too cynical, because the media should cover what matters and this is extremely important substantively, but your tweet implied to me that something will change in terms of Trump’s legal or political position. Do you think that’s true, or is this just a big moment substantively?
Look, any sensible journalist has to be chastened at this point regarding predictions that Donald Trump’s popularity will change. We have been through calling John McCain not a war hero, the racism of the Mexican-American judge [incident], trashing Gold Star families, any number of crises during his presidency, and his approval rating migrates a point or two in either direction. Nothing seems to change his political trajectory. So certainly I am mindful of that.
However, I do maintain the naïve faith that sometimes facts matter, and I think the magnitude of today’s developments, even if they don’t immediately affect approval ratings, do have a legal impact. I just did a big piece about impeachment in the New Yorker, where all the grandees of the Democratic Party were saying it’s crazy to do this, don’t get involved, all we are doing is making the same mistake that the Republicans made in 1998. But if Democrats retake the House, it is going to get harder and harder not to at least pursue a serious investigation.
You also tweeted, “Remember, Mueller and a Democratic House can now give Michael Cohen immunity without fear of jeopardizing any prosecution, since he’s already pleaded guilty. That means Cohen would have to testify in a grand jury and before Congress in public. We will hear more from Cohen.” What exactly do you mean?
I began my legal career as one of the prosecutors in the Iran-Contra case. I was in the criminal investigation under Lawrence Walsh, and there was also the congressional investigation. What happened there was that the congressional committees gave immunity to Oliver North in order to get him to testify. We prosecuted him anyway, and his conviction was thrown out because the appeals court said we had used his immunized testimony against him. When you get immunity, the deal is that your testimony can’t be used against you. The legacy of Iran-Contra is that Congress never gives immunity to anyone who might subsequently be prosecuted.
What’s happened now is that Cohen has been prosecuted. There will be no further prosecution of him. So a Democratic Congress would be free to give him immunity and force him to testify without jeopardizing any criminal prosecutions, because it has already been done.
And this presents none of the political peril of going all out for impeachment. Congress can investigate campaign finance violations, and thus seek Cohen’s testimony and see what he has to say about Trump’s involvement. You know, again, this is all dependent on Democrats retaking the House, but I think that would be a very likely scenario.
And the same goes for Mueller. Mueller doesn’t have to worry that he is interfering with the Southern District of New York’s investigation of Cohen because that investigation is now over.
Why do you think Cohen did not enter into a formal cooperation agreement, and is there any meaning to his not doing so?
I need to think about that more, to be honest. It somewhat surprises me. I think it is still very much in his interest to cooperate. He hasn’t been guaranteed a sentence, and the best way to get a lower sentence from a judge is to cooperate, and you don’t need a cooperation agreement in order to cooperate. But I have to say I am puzzled by that. But I don’t think it means he will not cooperate. We will hear his story one way or another.
Should the Justice Department now appoint a new special prosecutor to look into the Cohen stuff? A sitting president has been implicated in a criminal act. It’s messy.
[Laughs.] It’s a messy deal. I think the relevant question is: Should the Southern District turn over Cohen to Mueller? There is no reason to start a whole new special prosecutor.
I meant for the Cohen stuff that has nothing to do with Russia. Mueller already turned over Cohen to the Southern District. I mean the stuff involving Stormy Daniels and campaign payments.
I don’t know. I think Mueller is wary of Kenneth Starr–style mission creep. I think that is why he gave Cohen to the Southern District in the first place. I think one of the legacies of the Starr investigation is that Whitewater turned into Travelgate, which turned into Vince Foster’s suicide, and that turned into Monica Lewinsky. I don’t think that is a pattern that Mueller would like to replicate. Especially given the way the Southern District handled this case, Mueller might be just as happy to let them continue. And remember, Geoffrey Berman, the appointed U.S. attorney, is recused. So, it is in the hands of people somewhat removed from the president.
What did you make of the Manafort verdict?
It was just a totally squalid story about a guy stealing money. Basically, the story of the Manafort case was that when he was making money he cheated on his taxes. When he ran out of money, he lied to banks to get money under false pretenses. That’s all it was, which made the president’s comments tonight about what a wonderful person Paul Manafort is all the more reprehensible because it’s not like you could excuse Manafort’s behavior as some sort of misguided patriotism. This was just a guy who wanted money for his ostrich jacket. There was nothing to this except greed.
The backdrop, which makes the Manafort case interesting from a larger perspective, is what the hell was this Putin-apologist-once-removed doing running the Trump campaign? Why did he get involved? What was he trying to accomplish other than getting back in the game? And that is very much an unanswered question.
He is going to be sentenced to many years in jail, and there is another trial where if he gets convicted, he will be sentenced to even more years in jail, and I guess in total he could be sentenced to 200 years in jail or something, the rest of his life—
You know, I’m not sure that’s true, by the way. It’s not 200 years. It may be 10 years. I think we in the news media have been misleading the public, to a certain extent. The way federal sentencing works is not that you add up all the counts and the person gets that number. There are federal sentencing guidelines in which the conduct is grouped together.
Look, it’s all bad enough and he is still looking at another trial, and they may retry him on the 10 counts on which the jury hung. So, his legal ordeal is not over, but he is not going to get 300 years in prison.
OK, well, that modifies my next question. Let’s say there is some hope among Mueller’s people that he will cooperate for a lesser sentence. I was going to ask if he would need to be able to give them something super huge to get his sentence reduced to a manageable level.
I don’t think a 70-year-old man views 10 years as a manageable level. I think the more pressing question, especially given the president’s comments tonight, is whether a pardon is a realistic possibility. And the president sure sounded like someone who might pardon him.
There have been some reports that Mueller might want to look into the possible offering of pardons by Trump as acts of obstruction. That would presumably be a reason not to pardon Manafort. What do you make of adding the pardon power to an obstruction bill?
Well, look, you are talking about impeachment, not a criminal prosecution, right?
That is inherently a political process. Just because a president has the unquestionable power to pardon doesn’t mean he can pardon for any reason under the sun. If someone presents a suitcase full of cash in return for a pardon, I think we would all agree that that is an impeachable offense. So I think it is legitimate to ask if the pardon power has been abused. I am not ready to say that a pardon of Manafort would be an impeachable offense at this point. There are too many moving parts to say that in advance.
Right, I was just wondering if it could be part of the obstruction case that Mueller presents to Congress or Rosenstein.
It could be, but remember he hasn’t done the pardon yet, so it’s a little hard to anticipate.
Any other takeaways from today?
I don’t know. My head’s still spinning. It’s a really big deal. I think those of us in the news media, we are sometimes guilty of overhyping our stories, overhyping developments, saying “breaking news” on television somewhat promiscuously. But this is a big deal day, at many different levels. It’s going to take a while to absorb it all.
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