Prosecutors 'will seek indictment of Trump' over hush money payments, says top Supreme Court lawyer

Investigations outside of Robert Mueller's purview may be more damaging to president

Andrew Buncombe
Monday 17 December 2018 20:19 GMT
Donald Trump: 'Even if Michael Cohen was right it doesn't matter, because I was allowed to do whatever I wanted during the campaign'

Federal prosecutors will likely seek to charge Donald Trump over hush money payments on the eve of the election, a top Supreme Court lawyer has suggested.

Ever since prosecutors in the US Attorney’s Office in the Southern District of New York (USAO-SDNY) this month cited evidence against Mr Trump’s personal lawyer, Michael Cohen, that he made the payments at the president’s behest, the White House has been seeking to undermine Cohen as unreliable.

Rudy Giuliani, a former prosecutor and mayor of New York who new serves as Mr Trump’s personal lawyer, said this weekend Cohen was a “complete, pathological liar”, who had who breached legal ethics by secretly tape-recording his own client.

But Neal Katyal, a Supreme Court lawyer and former acting solicitor general who helped write the rules governing special counsels, said Mr Giuliani’s argument had little merit.

Not only had the president admitted reimbursing Cohen for the payments to adult actress Stormy Daniels and ex-model Karen McDougal – something the president said “was not campaign finance” – but executives at AMI, the parent company of the National Enquirer, admitted making hush money payments as part of a “catch and kill” strategy to prevent stories damaging to Mr Trump emerging. Mr Trump was said to have been present at a meeting with Cohen and AMI President David Pecker.

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Last week, Cohen was sentenced to three years for campaign finance violations, relating to the 2016 hush money payments.

“This is why the president is in such hot water right now. He does not have a decent defence against the campaign finance violations, which are very, very serious,” Mr Katyal told the New York Times’ The Daily podcast.

“Donald Trump is in a very different situation this week than he has been at any other time during the two years of his presidency. He is facing a Democratic congress with all those powers, and more importantly, he has these career prosecutors who have said ‘Trump – you committed various felonies and you’re likely gong to jail’.”

Asked if he believed the USAO-SDNY prosecutors would seek to bring indictments, he replied: “I think they’re gonna ask, yeah…If they ask it will be about because of the reporting around it, so I think they kind of have to.”

Almost ever since Mr Trump entered the Oval Office in January 2017, the nation’s legal community has been fiercely debating whether a sitting president can be indicted. Those who argue he cannot point to a 1973 Department of Justice memo based on constitutional principles that forbid criminally prosecuting a sitting president for federal crimes. The conclusion was reaffirmed in 2000 and remains policy.

At the same time, Mr Katyal points to rules governing the operation of special counsels, rules he helped write in 1999, that he has claimed “contemplate that a special counsel could, in appropriate circumstances, depart from Justice Department policy”.

Some believe the investigations being carried out by prosecutors that are not part Robert Mueller’s investigation, could yet be the biggest threat to the president. Even if they are unable to prosecute Mr Trump, they are likely to instead push ahead with probes in his family and close associates and the Trump Organisation itself the business the president spent his life building.

Executives within the Trump Organisation have been named in legal filings as the people who reimbursed Cohen for the hush money payments, Yahoo News reported.

At the same time, with all the apparent evidence they have gathered against Mr Trump, some former justice department believe prosecutors will have to so something with it.

Matthew Miller, a former Department of Justice spokesman, told the news site: “I don’t think it’s tenable for DOJ to just do nothing about him. That could either be some kind of referral to Congress. Or by making all the information available through an indictment of somebody else. And then they don’t have to send it officially to Congress. Congress will see it all because it’s all in the public domain.”

Meanwhile, others have suggested Mr Trump will simply be prosecuted once he leaves office and loses the special protection of being president.

Earlier this month, Democrat Adam Schiff of California, the congressman about the become chair of the House intelligence committee, told CBS: “There’s a very real prospect that on the day Donald Trump leaves office, the Justice Department may indict him – that he may be the first president in quite some time to face the very real prospect of jail time.”

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