Since the announcement of special counsel Robert Mueller’s decision to not indict President Donald Trump for obstruction of justice or any members of Trump’s family, critics of Trump who still feel some of his actions may have amounted to crimes seem to have put all their eggs in a new basket: the Southern District of New York. These Trump opponents now seem to be hoping that the Justice Department’s branch in the SDNY, which secured a plea deal from Trump’s former personal lawyer Michael Cohen, will come after Trump’s family for financial improprieties and perhaps Trump himself for potential campaign finance violations. But based on what we have learned from the Mueller report, which was released on Thursday, and how it has been handled by Attorney General William Barr, it is time to lower expectations for the SDNY to act, at least as it pertains to the president’s potential criminal liability while in office.
Recall that Cohen pleaded guilty to a number of crimes, including lying to Congress about negotiations over a Trump Tower Moscow project, tax evasion, bank fraud, and a hush money scheme to keep women alleging affairs with Trump quiet in the period before the election to help Trump’s chances. As I noted at Slate back in August, the Cohen guilty plea seemed to implicate the president in a felony: Cohen caused a limited liability company, Essential Consultants, to make an excessive, unreported in-kind campaign contribution or loan to the Trump campaign by paying adult film actress Stormy Daniels for her silence. The money originated with a home equity loan on Cohen’s property, and the Trump Organization and Trump himself later reimbursed Cohen and paid him extra for “legal services.” Cohen also worked to secure payment to the parent company of the National Enquirer to help it cover up an alleged affair with former Playboy model Karen McDougal, and he recorded Trump discussing the possible payment. Cohen has said in court and in congressional testimony that he broke the law at Donald Trump’s direction.
The Trump hush money payments saga is a fascinating, sordid Pulitzer-winning story uncovered through excellent reporting by the Wall Street Journal. It implicates not just Cohen for his payments to Daniels but also the president and leaders at the National Enquirer (which paid to “catch and kill” McDougal’s story of an affair).
But the Mueller report about possible Trump campaign coordination with Russia’s interference in the 2016 presidential election and Trump’s attempted obstruction of justice in blocking the investigation of potential ties to Russia—as well as Barr’s handling of the report—send very strong signals that the president is not likely to face criminal liability for this conduct, at least while he remains in office.
We saw last week from the Mueller report that Mueller failed to indict Donald Trump Jr. on campaign finance charges related to a June 2016 Trump Tower meeting with apparent operatives for the Russian government offering “dirt” on Hillary Clinton. Mueller found a lack of evidence Trump Jr. acted willfully in violating the campaign finance laws against soliciting foreign contributions for an American election campaign, and he did not even bother to haul Trump Jr. before the grand jury to see if he could get evidence of his mental state. Mueller also stated his reluctance to indict Trump Jr. given that this was based on a legal theory—that opposition research can count as “anything of value” for purposes of the ban on foreign contributions—that Mueller viewed as uncertain and potentially in violation of the First Amendment.
Put aside the questionable choices in what Mueller decided about Trump Jr.—which I laid out last week in Slate—and focus instead on how Mueller’s decision-making would apply to the Trump hush money payments.
Like the situation with Trump Jr., there might be questions about the president’s willfulness to violate campaign finance laws. Although Trump had tweeted about the similar John Edwards case at the time Edwards was on trial, that might not be enough for prosecutors to conclude that they might be able to prove to a jury beyond a reasonable doubt that Trump knew he was violating the law by making payments to a mistress during a campaign without reporting it. And just as Mueller’s team did not call Trump Jr. to the grand jury, it did not get to personally interview the president or get him before the grand jury. It relied on written answers from Trump, vetted through his lawyers. So it may be very hard to prove willfulness without getting more from the president himself.
And as with the foreign opposition research case against Trump Jr., the hush money payments case against Cohen—and thus Trump—relies upon a contested legal theory. It is true that the Edwards case is precedent for prosecuting this as a crime, but there is a reasonable counterargument that these payments should be treated as personal, and not campaign-related. Cohen might have pleaded guilty to these crimes rather than fight them raising these potential defenses because he was already pleading to other charges and saw no point in contesting these, which allowed him to attack the president as a co-conspirator in a criminal enterprise. At the very least, there is an argument that to avoid the problem of overzealous prosecutors, the better course is to leave criminal prosecutions of politicians in political cases to the most clear-cut cases of criminal liability.
As if that weren’t enough, there is the conduct of the attorney general. His handling of the Mueller report was a national embarrassment: He sought to pre-spin the report in Trump’s favor, acting more like the president’s defense lawyer than the country’s top law enforcement official. Although SDNY has some independence, there is no reason to believe that a decision to indict the president would not go through Barr, especially given long-standing DOJ policy, relied upon by Mueller, that a sitting president cannot be indicted (or even accused directly of crimes). Barr cannot be trusted to be fair, and even if he were in a close case, he would side with the president.
The bottom line is that SDNY is unlikely to go after the president for campaign finance violations. And unlike the allegations against Donald Trump Jr., these campaign finance improprieties do not involve national security. Don’t expect Congress, which seems poised to possibly look the other way despite heaps of evidence that Trump tried to obstruct the Mueller investigation into Russian interference with our elections, to decide to impeach Trump based upon payments to cover up the president’s affairs.
If Trump opponents are looking for a place to pin their hopes rather than the SDNY, it is looking increasingly that it will be on the voters of Wisconsin and others who will decide Trump’s fate in 2020.
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