Editor’s Note: Jennifer Taub is a professor at Vermont Law School. The views expressed here are solely hers. View more opinion articles on CNN.
Let’s be clear. Friday’s filings by federal prosecutors backed President Donald Trump into a corner. And his Monday morning rage-tweeting indicates he may be beginning to grasp his limited options moving forward.
This anger is an understandable reaction. In every direction, shame and loss await him.
Here’s why. Trump could now face prosecution for criminal offenses should he lose the election and leave office in January 2021 – if not sooner. More specifically, Trump was implicated by prosecutors in several felonies, namely campaign finance offenses stemming from the pre-election hush-money payoffs to Karen McDougal and Stormy Daniels.
As charges against Michael Cohen indicated, the $150,000 payment to McDougal was an illegal corporate contribution, which Cohen caused a magazine publisher to make to the Trump presidential campaign. Corporations are barred from making any direct campaign contributions; they are only permitted to spend money independently. And the $130,000 payment to Daniels was an unlawfully excessive contribution made by Cohen to the campaign, as it was above the individual limit of $2,700. Both payments, prosecutors allege, were made at the direction of Trump himself.
Fortunately for Trump, there is a deal to be made. However, his stubborn refusal to show weakness and cut his losses might result in a criminal trial and future prison sentence for the 45th President.
First, some context: On Friday, federal prosecutors from the Southern District of New York recommended a “substantial term of imprisonment” for Trump’s personal attorney Cohen, given his “extensive, deliberate, and serious” criminal conduct.
Yes, this is new, even if it sounds familiar. While Cohen had implicated his boss in a court statement he made under oath this summer, the allegations from Friday are more detailed and have much greater weight. In their Cohen sentencing memo, the SDNY prosecutors pointed a finger at Trump (referred to as “Individual-1”), stating that: “With respect to both payments, Cohen acted with the intent to influence the 2016 presidential election. Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments. In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1. As a result of Cohen’s actions, neither woman spoke to the press prior to the election.”
The words, “as Cohen himself has now admitted,” are a clue, according to former federal prosecutor Mimi Rocah that the government has other evidence beyond Cohen’s testimony. “They knew before Cohen admitted it.”
Whether indicted as a direct violator of the Federal Election Campaign Act, aiding and abetting it, or conspiring to violate it, Trump could face a prison sentence. For the campaign finance law, the statute of limitations is five years from the date of the offense, so that would be fall 2021. However, for conspiracy, the clock starts running when the last overt act in furtherance of the conspiracy takes place. This could allow for a potentially later indictment.
There are additional related potential charges that should concern the President. As Walter Shaub, former director of the US Office of Government Ethics has noted in a CNN appearance, Trump omitted from his June 2017 financial disclosure his debts to Cohen (in connection with the payment to Daniels). If done knowingly and willfully, this could be a felony for prosecutors to consider under the false statements statute, 18 U.S.C. § 1001.
Assuming federal prosecutors follow departmental policy and choose not to indict a sitting president, they would still have time to charge him if he loses the election in 2020 and exits the presidency in January 2021. If Trump is indicted while President (with the trial deferred until after his term ends), the statute of limitations could toll. This is like pausing a stopwatch. That way, if re-elected for a second term, the clock would start up again, and he could await a trial after departing in 2025.
Yet there is building support from legal scholars, including Harvard Law professor Laurence Tribe, condemning the Department of Justice policy and contending that the Constitution does not prohibit indicting Trump even while in office. Tribe recently tweeted: “I just don’t get it. If Trump shot someone, he’d be indicted in a New York minute. Nothing in the Constitution prevents his indictment for directing a criminal conspiracy to steal the presidency. Certainly not a DOJ ‘policy.’”
What this all means, is, even if not indicted now, Trump has a big gamble ahead. He can hope he wins in 2020. But if he does not, a criminal trial most likely awaits him on the other side. His other choice would be to try to negotiate a resignation before it’s too late, and hope for a full pardon for all federal crimes from Mike Pence, who would step in as President. This is not a guarantee, though. With political ambition of his own, depending upon the President’s poll numbers, Pence might stand firm.
Trump might even attempt to pardon himself. But, again, this is a huge risk. When he leaves office, he could then be charged with obstruction (which also has a five-year statute of limitations) – and such a conviction would also make that pardon worthless.
In short, Individual-1 is in a pickle.
For now, we should expect Trump to continue to rail against the Mueller investigation and related spinoffs, and even if some portion of his more than 56 million Twitter followers are sympathetic, that does not matter. There are only a dozen people who matter: the jurors selected for his potential future criminal trial.