How Trump can face criminal charges as president, explained by former lawyer from office prosecuting Cohen

Former official says Donald Trump could face legal jeopardy over a slate of investigations surrounding his presidency  

Chris Riotta
New York
Friday 14 December 2018 23:00
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Donald Trump: 'Even if Michael Cohen was right it doesn't matter, because I was allowed to do whatever I wanted during the campaign'

Michael Cohen has come out swinging at Donald Trump, saying "of course" the president was aware of hush money payments to silence women during the 2016 election that landed his former lawyer with a three-year jail sentence.

Speaking publicly for the first time since that sentencing, Cohen sought to up the legal stakes Mr Trump faces amid Special Counsel Robert Mueller's Russia investigation and another into spending for the president's inauguration in 2016.

Mr Trump's legal peril is the core issue at the heart of an argument currently taking place among legal analysts and campaign finance experts, in part over Cohen's campaign finance violations relating to the payments to adult actress Stormy Daniels and former Playboy model Karen McDougal, who alleged to have had affairs with the president.

While Mr Trump has denied the affairs, he has been implicated in criminal conduct by Cohen and a sentencing memo from New York prosecutors. That memo said "Cohen acted in coordination with and at the direction" of the president over the payments.

“I knew what I was doing was wrong,” Cohen said in an interview with ABC News released Friday. “I gave loyalty to someone who, truthfully, does not deserve loyalty.”

At one point Cohen was asked if Mr Trump's denial that he had ordered his former lawyer to make the payments was true. “I don’t think there is anybody that believes that,” Cohen responded. “First of all, nothing at the Trump Organisation was ever done unless it was run through Mr. Trump".

While Justice Department guidelines state a sitting president cannot be indicted, former officials have noted there are technically no laws on the books stopping investigators from charging Mr Trump over the hush money payments, among other potential legal troubles facing the president.

In fact, the president could face criminal charges regardless of his political status, according to Daniel Goldman, a former prosecutor with the Southern District of New York and a fellow with the nonpartisan public policy institute, Brennan Centre for Justice.

“As a former prosecutor I would feel comfortable charging the president with felony campaign finance fraud based on what we know now, so long as Michael Cohen could be used as a witness — and if the president could actually be indicted,” Mr Goldman told The Independent.

“We’ve had some kindling and now we have real smoke — but we’re not yet at a bonfire, though that certainly seems to be the direction we’re heading,” he continued. “I think the president’s most concrete legal jeopardy that we know of in the public is the campaign finance fraud crimes that Michael Cohen plead guilty to.”

Cohen’s emotional sentencing hearing capped off a dramatic trial for the president’s former “fixer” and ex-deputy finance chairman of the Republican National Committee, who said Wednesday he felt it was his duty to cover up Mr Trump’s “dirty deeds.”

“I blame myself for the conduct which has brought me here today,” he said, adding, “it was my own weakness and a blind loyalty to this man that led me to choose a path of darkness over light.”

On Thursday, Mr Trump also dismissed the significance of the campaign finance allegations, which he said were civil violations at best. But he added that if there were any legal issues, he had expected Cohen, to know that, and accused his former lawyer of trying to embarrass him.

On Friday, White House spokesperson Hogan Gidley backed that up by rebuking the latest developments, describing Cohen a “self-admitted liar” and blaming the press for “giving credence to a convicted criminal.”

Still, the latest revelations indicate the evidence could be mounting against Mr Trump, with new reports suggesting he attended a 2015 meeting with Cohen and David Pecker, the chairman of American Media Inc, in which the hush money payments were discussed.

“Trump has offered three different defences and lied for several months, flatly denying having any knowledge about the $130,000 payment to adult film actress Stormy Daniels,” said Corey Goldstone, a spokesperson for the nonpartisan Campaign Legal Centre. “There can be serious charges against Trump for conspiring with Cohen to make unreported individual contributions. In summary, he could become a target of a very serious criminal campaign finance violation, though part of what the prosecutors would need to determine is if Trump was aware of what the law was.”

Meanwhile, Mr Goldman — who worked for a decade at the offices that are now prosecuting Cohen, before leaving in 2017 — laid out a number of ways in which the president could face criminal charges.

First — perhaps the most surreal option — is Justice Department officials reversing guidelines in order to indict the president.

“I think there are many strong legal arguments for why a sitting president can be indicted, including issues with statutes to limitations and fading memories, but also basic fundamental principles that no one should be able to defraud the voting public to attain office and then be protected by that office,” Mr Goldman said. “But right now the policy at the DOJ is a sitting president cannot be indicted and unless that is reversed then there won’t be an indictment by either the special counsel’s office or the southern district.”

An acting attorney general could defy department guidelines and the office of legal counsel’s position, unilaterally deciding to charge a sitting president, though the former prosecutor noted that would be a “very unlikely” event.

The second option is that prosecutors wait until Mr Trump possibly loses the White House in 2020 to file charges against him, announcing an indictment before the five-year statute of limitations pertaining to his possible financial violations.

“There is a statute of limitations for five years, as long as there is an act taken in furtherance of the crime, then there would still be time to charge him after he left office,” Mr Goldman continued.

If Mr Trump secures another term as president, his tenure in the Oval Office would outlast the statute of limitations for crimes he could possible have violated. But lawyers could effectively argue those statutes don’t apply to a president who broke the law and evaded prosecution by remaining in the White House, Mr Goldman argued.

“There’s an open question about whether the statute of limitations apply in this case,” he said.

If none of that worked out, the former prosecutor said “the southern district and federal prosecutors would have to find a way to deliver their findings on the president to Congress, and if he was found to have broken the law, impeachment would have to be considered.”

“Of course, once the president is impeached, criminal charges can then follow suit,” he added.

As new investigations emerge, including a federal probe into the 2016 inaugural committee’s spending, public advocacy groups say Mr Trump could be directly implicated in previously unknown crimes that shape the next two years of his presidency — as well as the fate of his legal woes.

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Public Citizen, an organisation which has fought for transparency surrounding the president’s inaugural fundraising and demanded documents on the committee’s spending from the Internal Revenue Service, said Mr Trump faces a “perfect storm of implications.”

“It was a huge week with the shutdown tantrum, the inaugural investigation, Michael Cohen — it certainly feels like the president should be incredibly concerned,” said Lisa Gilbert, vice president of legislative affairs at Public Citizen. “The inauguration issue is something we’ve been paying attention to for a long time, since it was sort of a secret cloaked event. If foreign donors gave money to the inaugural committee that could bring another emoluments clause issue for Trump.”

“Everything that happened this week was a series of bombshells that could lead to Trump finding himself in the cross hairs,” she added.

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