Jurisprudence

AMI’s Immunity Deal Is a Disaster for Donald Trump

There’s only one big target left for prosecutors.

Photo illustration of several Trump-focused National Enquirer covers.
Photo illustration by Slate. Images by the National Enquirer.

If you look on the National Enquirer’s website you will find a story titled “Thief Hides GPS In His Anus!” That one headline sums up the journalistic stature of the grocery store tabloid.

While the Enquirer’s standing as a news source would make the editors at almost any publication cringe, the Enquirer has played a significant role in supporting Donald Trump’s political ambitions and in tearing flesh from bone every time his political opponent, Hillary Clinton, did something as innocuous as cough, or wear an expensive pant suit, or express her love for hot sauce during the 2016 election.

For years, the Enquirer has been there for Trump. Until now.

On Wednesday, an agreement between the U.S. Attorney’s Office for the Southern District of New York and American Media Inc., the National Enquirer’s corporate parent, was released. Federal prosecutors agreed to give AMI immunity from prosecution, for its participation in a campaign finance violation, in exchange for cooperation in the ongoing investigation of that crime. With the other culprit in the crime, Michael Cohen, having been sentenced to three years in prison on Wednesday, there appears to be only one direction for AMI’s cooperation to lead: President Donald Trump.

In the agreement, AMI admitted that it paid former Playboy model Karen McDougal $150,000 to stop her from disclosing an alleged affair with Trump, out of concern her story would negatively affect Trump’s chances of winning the White House. It appears the illegal arrangement was the brainchild of David Pecker, AMI’s chief executive and a former confidant of the president.

Until recently, speculation that the Department of Justice may proceed with campaign finance charges against the president, or indict and hold charges until he leaves office, centered on his former personal attorney, Cohen. According to Cohen’s August guilty plea, to identical charges from the same set of facts, his old boss directed him to commit this crime.

But last week New York prosecutors filed their sentencing memo on Cohen, and it included a revelation that Cohen refused to provide full and continuing cooperation. That seems to have extinguished speculation that Cohen will be a star witness against Trump in a campaign finance case.

As a former federal prosecutor who frequently handled prosecutions in which I gave a plea deal to one conspirator to testify against another, the potential loss of Cohen as a witness against Trump appears significant. Cohen could testify not only to the transactions that formed the bulk of the crime, he could also credibly testify to a key element of the crime: whether Trump’s purpose for the hush-money payoffs was to save his shot at the White House, rather than save his marriage.

As Cohen seemed to fall out of the picture as a potential witness, Pecker appeared to take his place. The factual basis AMI agreed to in the immunity agreement covers most of the bases that Cohen could have testified to and comes in a less compromised package that may be more believable to a jury.

New York prosecutors thoroughly dismantled Cohen’s character in their sentencing papers. Before filing such a brutal sentencing memo, they must have ruled him out as a trial witness. While no sane prosecutor relishes the idea of offering the National Enquirer’s mastermind as a witness at trial, Pecker’s baggage appears to be carry-on size while Cohen’s appears to come with a “heavy, handle with caution” tag.

What is significant, from a prosecutor’s perspective, is the early decision to offer immunity to Pecker and the National Enquirer. The U.S. attorney’s move in this regard tells us a few things. First, Pecker and AMI must have already offered substantial cooperation. Next, the April raid on Cohen’s offices—said to have netted all forms of evidence, including surreptitious audio recordings—must have given federal investigators substantial evidence not just against Cohen, but also against AMI. Under ordinary circumstances, the media organization would have had a strong First Amendment defense in that choosing not to publish the Trump affair allegations was done for journalistic reasons. But AMI decided to cooperate. That would indicate that prosecutors had them dead to rights, or that it was afraid of what a fulsome investigation of AMI’s other dealings might produce.

Finally, and most importantly, prosecutors do not like to let people who commit crimes walk away without a conviction—especially in high-profile cases where a conviction could mean substantial deterrence of other people who may be considering similar crimes.

In AMI’s case, proving the most difficult element of a campaign finance violation—an intent to influence the election—comes with an easy roadmap. The Enquirer broke the story about former presidential candidate John Edwards’ alleged campaign finance violation for a similar hush-money scheme, which led to his indictment, trial, and eventual acquittal based on the argument that Edwards was trying to protect his personal life and not his electoral prospects. Since Pecker and AMI broke a similar story, they would be hard-pressed to claim naiveté about the basics of campaign finance laws.

Further, the chief executive of the National Enquirer’s parent company is not a sympathetic character who prosecutors would lightly agree to let escape a criminal conviction—unless he has something the prosecutors really want him to offer in return. That something is likely Donald Trump. Giving Pecker and AMI a pass makes sense when the return on the prosecutors’ investment is the president of the United States.

Choosing to cooperate in this manner is not, as the president has attempted to portray it, some unethical “flipping” scheme. People who commit crimes do not agree to cooperate out of the goodness of their hearts. They want something in return. And, the best witnesses are co-conspirators. Having been a participant in the crime, they know of what they speak—that makes them believable. Particularly when moving up the culpability chain, it is both routine and righteous to offer a deal to one criminal to obtain evidence against a more significant criminal.

If prosecutors are considering an indictment against Trump, they undoubtedly have additional evidence—like recordings, texts, and email—that will support testimony that may come from Pecker. A recording in which Cohen and Trump plotted the payment to McDougal has already emerged.

A quick read of AMI’s immunity agreement may result in missing a briefly noted but key point. The agreement identifies “at least one other member of the [Trump] campaign” who was present at the August 2015 meeting between Cohen and AMI officials when the seeds of the crime were planted. It has been reported that Trump was the other person, which would put him at the center of the conspiracy. If those reports are accurate, Pecker’s testimony, placing Trump at ground zero of the criminal scheme, would undo Trump’s defense that the hush money was not intended to influence the election.

Wednesday’s disclosure of AMI’s immunity agreement was bad news for the president. The speed with which new details of the payoff scheme are surfacing could ultimately prove to be terrible news for the president. You should know you’re in trouble when the National Enquirer turns against you.