Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and of counsel to the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own. View more opinion on CNN.
Last week the nation witnessed a courtroom spectacle that included the president’s former personal lawyer and “fixer,” Michael Cohen, groveling for mercy at a sentencing hearing while his daughter watched, a crutch at her side. Future historians might view the maudlin scene as the beginning of the end of the Trump presidency.
The circumstances surrounding Cohen’s guilty pleas suggest that special counsel Robert Mueller and Southern District of New York federal prosecutors believe Cohen and Trump broke the law in paying hush money to former Playboy model Karen McDougal and porn star Stephanie Clifford, aka Stormy Daniels. The clear purpose was to protect the president’s reputation as a political candidate.
It is even possible that the president already has been indicted by a federal grand jury in a secret, sealed indictment that will be revealed only when he leaves the presidency. Of course, this is necessarily speculative, as prosecutors seal indictments to keep them secret.
Prosecutors generally use sealed indictments in three situations. The first is when they fear a suspect, upon hearing of his indictment, might destroy evidence before his arrest. The second is when they fear the suspect might flee. Neither of those applies to Trump. Even though he has the use of two well-equipped planes (Air Force One & Trump Force One), he is unlikely to flee the US and has no place to hide. But the third reason could be a factor: when the statute of limitations might expire before the suspect can be arraigned on the indictment.
Mueller and the New York Southern District prosecutors are bound by a Justice Department policy against indicting a sitting president.
Even if the president does not run for reelection, the five-year statute of limitations might expire on presidential criminal activities that reach back to 2015 by the time he leaves office. That could include planning the “catch and kill’ operation used on McDougal. These timing details are known only by prosecutors and those under investigation.
The issuance and sealing of the indictment would “toll” the statute from expiring. The issuance of the indictment stops the clock, and the sealing may prevent evidence destruction or witness tampering until the case can be tried. A viable prosecution would be possible even if circumstances such as the president’s reelection in 2020 prevent a prosecution until 2025.
It is also possible that a new Trump-designated attorney general could shut down Mueller’s investigation. The safe Mueller/Southern District of New York move is to indict Trump now and seal the indictment pending the president’s departure from office.
The details of Cohen’s guilty pleas in August and November, as well as the sentencing proceedings last week, show that Cohen and his highly reputable attorney, former federal prosecutor Guy Petrillo, know something important. They believe that prosecutors have the evidence to prove that Cohen committed a felony violation of US election laws in orchestrating the payments to McDougal and Clifford.
Federal Judge William Pauley could not have accepted the plea unless he too believed a federal felony was committed. This was no “simple private transaction,” as the president asserted.
Trump is legally permitted to make unlimited campaign contributions on his own behalf. But these must be promptly reported under federal law. The government’s sentencing recommendations in connection with Cohen’s August plea reveal that the president was aware of the payments, probably even attending a meeting with Cohen and David Pecker, chairman of AMI (the National Enquirer’s corporate owner), to discuss silencing scandalous reports about potential candidate Trump. He clearly intended to hide rather than report the expenditures. This was not an oversight but the act of a co-conspirator in the commission of the felony.
It is logical that the government has negotiated a non-prosecution agreement with AMI and with Pecker himself (“Chairman1”), as the sentencing documents show him to be a key witness to corroborate Cohen. Cohen also has tapes of the president affirming his desire to pay off McDougal.
Later Trump Organization documents and Rudy Guiliani affirm that Cohen was reimbursed for the payments under the guise of legal fees. The evidence clearly demonstrates that Cohen used shell corporations and the Trump Organization to hide the president’s role in the whole sordid matter.
This makes the president a criminal co-conspirator in the commission of a federal felony, and that’s an impeachable offense. The case is strong, and the smart move by Mueller and New York federal prosecutors is to indict and seal, and then finish the Russia probe. Given Cohen’s statements about the president’s pre-election relationship with the Russians, that too looks increasingly problematic for Trump.
Finally, filing an indictment in New York would lock in a prosecutor’s dream jurisdiction for trial. What better venue could a prosecutor have to try Trump than the Southern District in New York City, where the public is heavily Democratic and likely to view him as Public Enemy No. 1?