Editor’s Note: Norman Eisen is a senior fellow at the Brookings Institution and was President Barack Obama’s “ethics czar” from 2009 to 2011. He is the author of “The Last Palace.” Barry H. Berke is co-chair of the litigation department at Kramer Levin Naftalis & Frankel, where he is a trial lawyer specializing in white collar criminal defense. Eisen is the chairman of, and Berke outside pro bono counsel to, Citizens for Responsibility and Ethics in Washington, which is engaged in litigation against President Donald Trump and his administration. The opinions expressed in this commentary belong to the authors. View more opinion articles on CNN.
We are accustomed to a high degree of falsity in President Donald Trump’s tweets, but Monday’s double decker about former attorney Michael Cohen was notably packed with whoppers even by his own standards. Contrary to Trump’s statements, Cohen may have landed the President and those around him in legal jeopardy not only for felony campaign finance violations but also for a number of other crimes.
Federal prosecutors in the Southern District of New York on Friday detailed an elaborate criminal scheme in which Cohen made or facilitated payments to an adult film actress and a former Playboy model, both of whom claimed to have had affairs with Trump (allegations Trump denies). Cohen admitted he engaged in this scheme in coordination with and at the direction of Trump. Friday’s sentencing memorandum was the first filing produced by the President’s own Justice Department to implicate him directly in the commission of a felony.
Responding to a Fox News segment on these payments, the President said, in two tweets, the first of which tagged Fox News: “Democrats can’t find a Smocking Gun tying the Trump campaign to Russia after James Comey’s testimony. No Smocking Gun…No Collusion.” @FoxNews That’s because there was NO COLLUSION. So now the Dems go to a simple private transaction, wrongly call it a campaign contribution,… ….which it was not (but even if it was, it is only a CIVIL CASE, like Obama’s - but it was done correctly by a lawyer and there would not even be a fine. Lawyer’s liability if he made a mistake, not me). Cohen just trying to get his sentence reduced. WITCH HUNT!”
Trump supporters and Senate Republicans are arguing this is a minor violation at worst and the President himself bears little if any responsibility here. Democrats and Trump opponents contend that we’re in potentially impeachable territory. Despite the President’s posture in these tweets, his conduct surrounding payments to Stormy Daniels and Karen McDougal suggests a guilty conscience: By hiding the payments for a year, falsely categorizing them as legal expenses and dissembling about their existence, the President may have backed himself into a corner. These do not seem to be the actions of a person with no knowledge of the criminal nature of the payments.
Because the President’s erroneous tweets seem to be testing his likely lines of defense – all fallacious – to this newly emerging area of his legal exposure, they merit further attention and analysis.
First, there need be no smoking gun (nor a “smocking” one) to prove “collusion.” That term refers to the possibility that those associated with Trump, in violation of federal conspiracy or other criminal statutes, participated in the Russian attack on our democracy.
Despite Trump’s repeated denials, there is a growing chain of evidence that supports the offer of Russian help to the Trump campaign and acceptance of it, express or implied. The Cohen filings disclosed another piece of that potential proof: a previously unknown Russian contact offering “political synergy” with Trump in the midst of his campaign. Added to the numerous other political and business contacts between Trump associates and Russian representatives of which we are aware, this disclosure materially advances the collusion investigation.
Next, the President asserts that “Dems” are focusing on “a simple private transaction.” But the career Justice Department prosecutors in the Southern District of New York are not Democrats. They are, as a prominent Republican has noted, “professional line prosecutors” working in an office led by a Republican US attorney, Geoffrey Berman, who had been nominated for that position by the Trump administration. They are directly supervised by Deputy US Attorney Robert Khuzami, who is also a Republican – one who has (unusually for a prosecutor) even spoken at the Republican National Convention.
Moreover, there was nothing “simple” about the actions that potentially implicate the President: an intricate scheme of alleged criminal conduct that moved money from Cohen and the National Enquirer to the two women by way of an intentionally obscure array of cutouts, intermediaries and shell entities.
The wide-ranging nature of the scheme implicates not only campaign finance statutes, but also criminal conspiracy liability, which happens whenever two or more people conspire to commit a crime or defraud the government and then act upon that conspiracy. In this case, Cohen even taped at least one discussion with the President – resulting in evidence demonstrating Trump’s knowing participation in the scheme.
Nor is that the end of the potential federal criminal charges. Trump may be exposed to false statements liability because he did not list his debt to Cohen on his June 2017 presidential financial disclosure form. That omission was the subject of a complaint by the watchdog group one of us chairs, and has already resulted in a criminal referral about the President from the Office of Government Ethics to the Justice Department that, as far as we know, remains open.
Trump’s claim that the payments to the women were not campaign contributions is also wrong. The prosecutors charged these payments as illegal campaign contributions, Cohen concurred in pleading guilty, the court accepted that plea, and Cohen faces a significant jail sentence at his sentencing Wednesday. As the prosecution noted in its Friday memorandum: “(W)ith respect to both payments, (Cohen) acted with the intent to influence the 2016 presidential election. … As a result of Cohen’s actions, neither woman spoke to the press prior to the election.”
The President goes on to liken his scheme to a violation that resulted in a $375,000 fine levied on President Barack Obama’s campaign in 2008. This is false equivalence, to say the least. Obama’s fine had to do with accidentally failing to report the identities of donors who gave large donations during the last weeks of the campaign, a time when reporting requirements are triggered on a shorter timeline. The Federal Election Commission found that the campaign failed to meet this shortened disclosure timeline, but there was no indication that Obama had knowledge of the inadvertent violation. On the contrary, the evidence suggested negligence at much lower levels of the campaign for this technical violation.
In contrast, Trump seems willfully to have concealed the payments, characterizing them as a “retainer” to Cohen despite the fact that, as the prosecutors in New York explained, Cohen “provided negligible legal services.”
If all this were simply a paperwork error, Trump would have filed a correction with the FEC, as Obama did. Instead, he denied it repeatedly for more than a year.
The President concludes his tweet by arguing that Cohen, as a lawyer with an obligation to explain the consequences, is liable “if he made a mistake, not me.” While this argument does speak to the potential campaign finance charges because they require specific intent to violate the law, the elaborate machinations surrounding the payments and subsequent efforts to conceal them, including what’s described in Cohen’s taped conversation with Trump, imply that all involved likely knew they were doing something that the law forbade.
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While we need to await the revelation of more evidence to render a final judgment on this point, what we know now offers no support for the President’s tweeted defense – or his proclamation that the investigation is a “WITCH HUNT.”