Editor’s Note: Elie Honig, a former federal and state prosecutor, is a CNN legal analyst and a Rutgers University scholar. The views expressed in this commentary are his own. View more opinion articles on CNN.
Few American presidents ever have experienced as much legal turmoil in one year as Donald Trump did in 2018. The past year brought a drumbeat of blockbuster revelations from special counsel Robert Mueller, but 2018 could end up as just a brisk warmup for what’s to come in 2019. Buckle up.
As a reminder of just how much has changed, here’s what the landscape looked like one year ago today:
– Trump’s longtime personal attorney, Michael Cohen, had a clean rap sheet. Cohen now has pleaded guilty to nine federal felonies – including campaign finance crimes, in which both Cohen and the United States Attorney’s Office for the Southern District of New York (SDNY) implicated Trump. Cohen will begin serving a three-year prison sentence in March 2019.
– Trump’s former campaign chair Paul Manafort was a free man who had been charged but not convicted of any crime. Now he is a convicted felon who has been in federal prison for six months, and might stay there for the rest of his life.
– No Russians had been charged with any crime relating to the 2016 election. Since then, Mueller has charged 13 Russian nationals for allegedly using social media to conduct “information warfare against the United States” and 12 Russian intelligence officers for allegedly hacking the servers of Hillary Clinton, the Democratic National Committee and others in an effort to help Trump win the 2016 election.
Mueller is far from done. 2019 promises to be another cataclysmic year for Trump and his inner circle. Keeping in mind an immutable truth of this investigation – Mueller knows more than we do – here’s a look ahead at what to expect.
Several former members of the Trump campaign and administration soon will learn how long they will spend behind bars.
– Paul Manafort. All Manafort did in 2018 was get thrown in jail for witness tampering, get convicted at trial, plead guilty to even more crimes, and then get caught allegedly lying to Mueller in a failed effort at a cooperation deal. Rough year. Manafort now faces a hearing on January 25, 2019 about his alleged lies to Mueller, which should be the last stop before sentencing. Manafort is 69 years old, and likely faces a sentence that will keep him behind bars for most or all of his remaining life – unless Trump makes good on his suggestion of a potential pardon.
– Michael Flynn. Flynn likely walked into court for sentencing in December expecting to leave a free man; Flynn’s own lawyers and Mueller agreed that he deserved a non-incarceratory sentence, given his substantial cooperation with prosecutors. Not so fast. Judge Emmet Sullivan laid into Flynn, rejecting the suggestion that Flynn had been set up by the FBI and wondering aloud if he might have committed treason. Flynn now faces an uncertain future. Judge Sullivan gave Flynn until March 13, 2019 to update the court on his cooperation. The message to Flynn is clear: either prove your worth to Mueller, or you’re going to jail.
– Rick Gates. Gates – Manafort’s right-hand man turned star prosecution witness at trial – also faces sentencing. Mueller has confirmed that Gates’s cooperation is ongoing, and the parties will update the judge by January 15. Gates likely will learn his fate later in 2019.
Who’s under scrutiny now
– Roger Stone. Stone, a longtime Trump associate, has said he is “prepared” to be indicted by Mueller. Stone – who, incidentally, has a large tattoo of Richard Nixon on his back and whose motto is “admit nothing, deny everything, launch counterattack” – remains characteristically defiant. He told an interviewer on Meet the Press that Mueller “may seek to conjure up some extraneous crime, pertaining to my business, or maybe not even pertaining to the 2016 election.” Stone could face charges for allegedly conspiring with Russian hackers, Wikileaks and the Trump campaign to obtain and distribute stolen e-mails and, potentially, for lying to Congress about those contacts.
– Jerome Corsi. Corsi also has said he expects to be indicted for lying to Mueller or a grand jury about his role as an intermediary between Stone and Wikileaks regarding the publication of hacked e-mails. Corsi steadfastly has denied criminal liability, claiming that Mueller tried to force him to “sign a lie” and defying Mueller to try to “put me in prison the rest of my life.” We will learn whether Mueller takes him up on it.
– Donald Trump Jr. and Jared Kushner. President Trump reportedly is worried that his son will be indicted, though he has strenuously denied any concern over his son’s conduct. Donald Trump Jr. and Donald Trump’s son-in-law and senior adviser Kushner could face potential legal jeopardy on several fronts: (1) conspiracy to obtain foreign election aid for participating in the June 2016 Trump Tower meeting with Russians offering dirt on Clinton, or lying to Congress about President Trump’s knowledge of that meeting; (2) lying to Congress about Trump’s efforts to build a skyscraper in Moscow in 2016 – the same crime for which Cohen already has been convicted; and (3) campaign finance violations, if Trump Jr. or Kushner are the “Executive-1” or “Executive-2”, referenced in Cohen’s guilty plea, who – he said authorized and facilitated illegal hush money payments.
For Democrats, taking control of the House of Representatives comes with the all-important power to issue subpoenas and conduct investigations. Incoming House committee chairs, including Adam Schiff (Intelligence), Jerry Nadler (Judiciary), Elijah Cummings (Oversight and Government Reform) and others, made no effort to play it cool, publicly announcing their planned Trump-centric investigations the day after midterms, even before all election results had been tallied.
These House investigations would open up a new front, with different rules, for Trump. While Mueller carries plenty of punch, much of his work is done out of public view and subject to strict rules of grand jury secrecy and criminal procedure. The House, however, can hold public hearings, on fairly short notice, with little limitation on substance. The Democrats’ hit list includes Russian election interference (though they would be well-advised to steer clear of Mueller’s ongoing criminal probe), Trump’s tax returns and personal finances, payments of hush money and the appointment of Whitaker as acting attorney general.
While House Democrats now wield a powerful new tool, don’t expect the White House to accede to every demand from Schiff and company. Trump and his legal team could take various tacks, ranging from challenging the scope and relevance of congressional subpoenas to invoking executive privilege to simply defying Congress. This will not go down without a legal battle.
The Mueller report
The special counsel regulations set out a two-step process for Mueller’s final report. First, Mueller must “provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the special counsel.” The attorney general, in turn, may decide whether and how to release the information in the report, or some portion of it, to Congress and the public.
This seems straightforward on its face, but expect a pitched legal and political battle. Rudy Giuliani, Donald Trump’s attorney, already has declared that he is preparing (as Trump put it) a “major Counter-Report” and that the President reserved “the right to object to the public disclosure of information that might be covered by executive privilege,” as Jeffrey Toobin reported in September in the New Yorker. That argument seems legally dubious, but there is also little legal precedent – and the Supreme Court’s newest justice, Brett Kavanaugh, has expressed a strong view that the President should not be subject to normal legal process.
Further complicating matters is uncertainty about who will be attorney general by the time Mueller issues his report, and whether that person – Whitaker or Trump’s announced nominee, William Barr – will allow the report to see the light of day.
Before their announced appointments, both Whitaker and Barr criticized Mueller’s investigative and legal tactics, raising questions about their impartiality. Whitaker’s recent decision not to recuse himself despite the advice of ethics experts, and recent meetings during which Trump reportedly “lashed out” at Whitaker for allowing the SDNY to implicate Trump in campaign finance crimes, only add to the concern about the independence of the Department of Justice moving forward. (Trump denied that he “lashed out” at Whitaker, but did not deny that he had spoken to Whitaker about the case).
Mueller plays strictly by the rules, but he is nobody’s fool and is unlikely to allow his findings to be improperly suppressed. He already has made public significant details about his investigative findings through his court filings, and he likely will continue to inform the public of his work through indictments, plea agreements, and sentencing memos.
The newest player in the mix is Schiff, who suddenly carries a heavy stick as the incoming chair of the House Intelligence Committee. Schiff already has made clear that he will fight any effort to bury Mueller’s findings. We could see a free-for-all right out of professional wrestling: Mueller vs. the attorney general vs. congress vs. the White House. It would be a legal brawl befitting what promises to be an explosive year in 2019.