On the morning after what had been heralded in the MSM and on social media as the most consequential day in the Trump presidency, the most surprising fact is how little has actually changed.
Yesterday, at virtually the same time, two Trump intimates faced felony convictions in court. In Virginia, former Trump campaign manager Paul Manafort was convicted of eight of the 18 charges brought against him by Special Counsel Robert Mueller. 300 miles away, Trump’s former personal lawyer, Michael Cohen, copped a plea to eight charges brought by the US Attorney for the Southern District of New York (SDNY), on referral from the Special Counsel’s office.
In the immediate aftermath of the court proceedings, cable pundits and political hacks were absolutely certain something profound and damaging to the President had occurred, but were strangely unable to coherently state what that tangible damage was.
With regard to Manafort, it is certainly true that he joined the Trump campaign in April 2016, to manage the GOP convention, and then subsequently took over as campaign chairman from May to August. It is also true that Manafort made a post-Reagan career consulting for unsavory foreign clients, mostly recently working for the Putin-backed president of the Ukraine, who fled the country in 2014. The intersection of the connections and position is the reason for the continued, intense scrutiny of Manafort, and whether there was any possible “collusion” between the Russians and the Trump campaign.
But yesterday’s conviction had nothing to do with Russian collusion.
All the charges brought against Manafort in this trial predate his time serving the Trump campaign and related to his personal financial conduct. Indeed, the investigation into what eventually became the 18 charges that the Special Counsel’s office used against Manafort had been floating around the Justice Department when Mueller arrived, and the Special Counsel simply took them over as part of his charge to investigate collusion and “any other crimes he may uncover.”
A conviction by Mueller? Yes. Proof of Russian interference, conspiracy or collusion? No.
Cohen is a different and more complicated story.
Cohen has worked for Trump for a decade, acting as the alleged “fixer;” the lawyer who did the Trump Organization’s “wet work,” with lawsuits and threats. The Washington consensus was that if anyone had “dirt” on the President, it was Cohen. The fact that Cohen apparently recorded calls with then-CEO Trump only added to the sense of risk.
Considering Cohen’s centrality to Trump before he became president, yesterday’s charges actually seem underwhelming, at least as far as they failed to uncovered anything new.
Cohen plead guilty to eight counts, six of which deal with tax evasion and false statements to financial institutions. It’s the last two that have the media on fire. 1) Willfully causing an unlawful corporate contribution, and, 2) Making an excessive campaign contribution. Both of these campaign finance charges relate to $280,000 in payments to two women – Karen McDougal and Stormy Daniels – in return for their silence regarding “alleged” affairs with President Trump, in the lead up to Election 2016.
Despite the multiple campaign finance related statutes cited by the US Attorney’s office, a careful reading suggests that most of these laws fail the test of applicability to Cohen. First, the laws state that the contribution must be made to a “…candidate, campaign committee or political party or organization.” That was not true of either payment, as they were made to individuals not associated with any campaign. Further, with regard to “causing a corporate contribution, SDNY got Cohen to accept blame for a payment made by the CEO of the National Enquirer to Karen McDougal. How Cohen forced the CEO of a billion dollar enterprise to cut a six figure check is not revealed.
The glue of the government’s case here is 52 USC 30116(a)(7): “For the purposes of this subsection: expenditures made by any person in cooperation, consultation or concert with or at the request of a candidate…shall be considered a contribution to such candidate (emphasis added).” This, in turn, becomes a “he said-he said” between Cohen and Trump, unless Cohen’s tapes, now in the hands of prosecutors, back him up. It’s likely the US Attorney’s office would not have made the charges part of the plea agreement unless they were bullet proof.
But even here, the case is weak. Former senator and presidential candidate John Edwards had a corporate friend pay $1 million to his secret girlfriend Rielle Hunter 2008, to buy her silence during the presidential race. When the affair was exposed, and Edwards charged, a jury refused to convict him of campaign finance violations similar to those Cohen copped to. As a result, there is more smoke and less fire here, where Trump’s name is invoked and tied to a campaign finance felony.
A few other details stand out here.
First, Mueller referred this case to SDNY in the first place, which would imply that Cohen was not central to his investigation. Second, the SDNY, whatever they found in Cohen’s documents and tapes, did not bring additional charges as part of the plea, which you might have expected given the deep relationship between Trump and Cohen. Third, SDNY did not make ongoing cooperation a condition of the plea. If Cohen had something truly useful, his ongoing cooperation would be essential, and therefore would need to be legally binding. As a result, there does not appear to be immediate danger to the President.
However, lack of immediate danger does not mean lack of risk, and both Manafort and Cohen continue to pose significant midterm problems to Trump.
First, Manafort’s legal woes are not over. Now that the trial regarding his personal finances is done, he will face another trial on September 17th regarding foreign lobbying and money laundering. Unlike the last trial, this new case will highlight Manafort’s very cozy relationship with Ukrainian oligarchs who are very close to Putin. The Special Counsel’s office has three times the number of exhibits for this next trial as it did for the last one.
While the Special Counsel has made no mention of “collusion,” the multi-week trial will highlight Manafort’s past relationships with sordid Ukrainian and Russian government officials, relationships that were key to his private business when he was the head of Trump’s campaign. Inference and innuendo will no doubt dominate news headlines for the multiweek trial as both parties are making their closing arguments for the midterms.
It will be ugly.
The Cohen risk is more vague and potentially more dangerous.
On the actual Cohen plea to campaign finance violations, current Justice Department policy, validated by both Republican and Democrat administrations (1973 and 2000), confirm that a sitting president cannot be indicted while in office. This could be challenged of course, but it will inevitably end up with SCOTUS, where a proper interpretation would rule that such legal entanglements for a sitting president are properly dealt with through the Constitution’s impeachment clause.
Of course, if the Democrats were to take the House in November, the Cohen plea could be a catalyst for impeachment, even if Mueller shuts down with no additional evidence of wrongdoing. However gratifying it will be for Progressives, it will be in vain, as there is no way, regardless of the election results in November, that the Senate will command 67 votes to convict Trump with only this charge. There is definitely blood in the water, and the Democrats smell it. But this effort to punish Trump will be futile, not unlike Clinton in 1999-2000.
It is America that will suffer.
The bigger question with Cohen right now, is what, if anything, the Feds have that might be the subject of a new investigation where Cohen isn’t a defendant. The absence of a requirement to cooperate does not mean that Cohen is free from subpoena to testify on charges that he is aware of or volunteer information in unrelated cases. Cohen’s lawyer, the always ethically flexible Lanny Davis, has said Cohen is willing to cooperate on a host of issues, including collusion with the Russians, stating that Trump had advance knowledge of the DNC hack. Ultimately, only Trump and Cohen know how much danger there is for POTUS, and, more importantly, what can be proven.
In any event, it does appear that things will get worse before they get better for Trump. At a minimum, there seems to be little likelihood that Mueller will close down his investigation until after the next Manafort trial (barring additional indictments) and that takes the Special Counsel’s investigation through Election Day, something sure to keep POTUS and his team on edge, and keep an issue that obsesses Trump on the front pages right up until the vote.
A larger point.
The rulings yesterday set off two, sadly predictable explosions on social media.
Progressives and Never Trumpers were almost gleeful. A pleading had finally tied Trump personally to a campaign crime from 2016. Impeachment talk was fast and loose. The pro-Trump right was less certain, first denying reality by refusing to even talk about the rulings, then reverting to standard #whataboutism and boiler plate on “witch hunts” and the “Deep State.”
It is mind numbingly vacuous.
For the Left, the Cohen plea and its connection to Trump is just a means to an end. The true crime for these folks was Trump winning 2016. Anything that can reverse that result is essential and appropriate to atone for their shame in losing a “can’t lose” election.
Trump boosters are no better, refusing to even entertain the idea that Trump should be own the consequences of his actions.
No one forced Trump to sleep with two women outside of his marriage. No one told him to pay off the women before Election Day. No one told him he had to hire Manafort, whose sordid business activities were in plain sight for even the most casual background check. Further, if Trump’s business conduct prior to the presidency, and particularly during the campaign, involved potentially illegal activities approved by Trump and executed by Cohen, that’s all on Trump. You don’t get a pass because your busy Making America Great Again.
In addition, part of Trump’s allure during the campaign was his apparent business success and the sense that he only hired the best and brightest, and that he would continue to do so as president, breaking the lock of the “DC Establishment,” that had so “ravaged” the country.
But that was a mirage. With a few, notable exceptions, Trump’s business associates and appointees are noteworthy only for their questionable backgrounds and thin experience, controversial activities, and overall mediocrity. The only characteristic they all share is an eye-popping toadyism to Trump, at the expense of honesty, integrity and decency. When Jeb Bush said that Trump would be the “chaos president” he wasn’t wrong, and the quality of those whom Trump has chosen to trust is a big part of his current difficulties.
But we, as citizens, also bear responsibility here.
We are 19 months into the Trump presidency, and we have become virtually desensitized to the epic events happening in our public square. Had yesterday’s events occurred to any president from Reagan through Obama, it would have triggered a national crisis. But instead, except for hyper partisans on both sides, it is met mostly with shoulder shrugs. If we don’t expect more from our leaders than what we saw yesterday, then yesterday becomes the norm, not the exception.
We each have a stake in that future that is being constructed right now.