The case against the president would be far stronger than the case against John Edwards was.
This all suggests Trump could become a target of a very serious criminal campaign finance investigation. In response, Trump has offered up three defenses. His first was to repeatedly lie. For quite some time, he flatly denied knowledge about the $130,000 payment to Stormy Daniels. But now he seems to be acknowledging that he knew (since his personal company reimbursed Cohen for the payment, he ought to). Now Trump and his acolytes have turned to two other excuses: They point to an earlier case involving former senator John Edwards to argue that what Trump did wasn’t a crime; and they say, even if it was a crime, it wasn’t a biggie — there are lots of crimes, so what, who cares.
The former is a very weak legal argument, and the latter a dangerous one. Indeed, the campaign finance violations here are among the most important ever in the history of this nation — given the razor-thin win by Trump and the timing of the crimes, they very well may have swung a presidential election.But the case is actually harmful for Trump — especially what the judge ruled. Edwards repeatedly argued that the payments were not campaign contributions because they were not made exclusively to further his campaign. The judge rejected this argument as a matter of law, ruling that a payment to a candidate’s extramarital sexual partner is a campaign contribution if “one of” the reasons the payment is made is to influence the election.
As a legal matter, that aspect of the Edwards case is what matters now — and it’s damning for Trump. It provides a precedent that other courts could follow in any prosecution arising out of the hush-money schemes Trump paid: The president could face criminal charges for conspiring with Cohen to make the payments because the evidence shows the payments were made, at least in part, for campaign purposes. As for what the jury concluded in the Edwards case, there’s good reason to believe that the evidence in a criminal case against Trump would be much stronger.
The timing of the payments in Edwards’s case appeared to relate to paying for expenses from the birth and support of the child he fathered with his partner rather than to any campaign activity, and payment began before the campaign did. In contrast, Trump’s payments to his former sexual partners were made many years after the actual affairs. The payments to Daniels, whose given name is Stephanie Clifford, were made in the final weeks of the 2016 campaign, immediately after the “Access Hollywood” scandal broke, when Daniels was in negotiation with national media outlets to go public with her story. This timing strongly suggests that the payments were campaign-related.Edwards argued that he didn’t know anything about the payments and that, regardless, the payments in his case were intended to keep news of the affair and pregnancy from his wife — not to keep the information from voters. Trump tried the first tactic, but Cohen’s tapes eviscerated that argument. There is no reason to think that Trump’s attempt to paint these as personal payments is any less of a lie than his attempt to say he didn’t know about them... Unlike with Edwards, prosecutors have noted evidence that Cohen “coordinated with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments.” If Cohen had made the payments as a purely personal matter for Trump, separate and apart from Trump’s candidacy, Cohen would not have consulted with the campaign about doing so. Further, Trump was first aware of threats to publish information about this affair in 2011, when his youngest child had just been born to his new wife and at the time made no offers of money to keep the news quiet. What was different in 2016 was the election.
In the Edwards case, there was a paucity of evidence. A key witness, Bunny Melon, was 101 years old and too frail to show up at trial. There were no written legal agreements providing money in exchange for silence, as there are in Trump’s case, and no threats by the mother of the child to go public immediately if the funds were not received. That’s why one juror told the media that the evidence wasn’t there to show even that Edwards intended the money to go to Rielle Hunter. In contrast, in a bombshell disclosure this week, the public learned that AMI, the parent corporation of the National Enquirer, is cooperating with the prosecution and has stated that the payments were made to influence the 2016 election. And even more worrisome for Trump, reports emerged Thursday that Trump was the third person in the very room where Cohen and David Pecker (the head of AMI) discussed the hush money payments — making it very hard for Trump to assert a non-campaign-related purpose.
Trump’s legal adviser Rudy Giuliani has argued that the jury in the Edwards case vindicated Edwards, but, in fact, the jurors acquitted him on only one criminal charge and deadlocked on the others. And at any rate, as Giuliani (a former federal prosecutor before he was mayor of New York) should know, criminal jury verdicts are not legal precedents. The Edwards jury, applying the law to the particular facts of that case, did not find Edwards guilty beyond a reasonable doubt. This is 100 percent irrelevant to whether Cohen’s guilty plea proves that Trump broke the law based on very different facts.
The final Trump defense being floated, that everyone breaks the law, fares no better. As its chief expositor, Sen. Orrin G. Hatch (R-Utah), put it, “I don’t care” if the law has been broken, “all I can say is he’s doing a good job as president.” He added, “The Democrats will do anything to hurt this president. Anything.”
As individuals who have devoted their lives to nonpartisan enforcement of the law, we cannot think of a more dispiriting statement. Hatch is wrong about every aspect of this statement. The accusations against Trump come from career prosecutors in the U.S. Attorney’s Office for the Southern District of New York (otherwise known as Trump’s own Justice Department). But the more important point is this: We will rue the day a senator trotted out such callousness about federal felonies.
The whole idea of our criminal justice system is to enumerate those offenses that are so egregious that they demand serious jail time. Those felonies are the bread and butter of our criminal justice system. Of course, every criminal defendant seeks to minimize his crimes. But such defendants don’t have a cheering squad composed of United States senators. If Trump wants to argue he didn’t commit the crimes, as he used to assert in April, fine. He’s entitled to that defense. But the grievous minimization of serious campaign finance violations by members of Trump’s political party further corrode our commitment to our age-old ideal of being a “government of laws, and not of men.” If Hatch thinks too much activity has been criminalized, he is in a welcome position to change the laws as a member of the Senate. He shouldn’t denigrate the law in the process. After all, the campaign disclosure requirements at issue here were enacted by Congress (as key post-Watergate reforms after President Richard Nixon’s personal lawyer Herbert Kalmbach went to prison for paying hush money to potential witnesses out of secret cash campaign contributions).
The bad arguments being floated in Trump’s defense are emblematic of a deterioration in respect for the rule of law in this country. The three of us have deep political differences, but we are united in the view that our country comes first and our political parties second. And chief among the values of our country is its commitment to the rule of law. No one, whether a senator or a president, should pretend America is something less.
“There would have been nothing wrong if I did do it,” Trump said. “When I’m running for president, that doesn’t mean I’m not allowed to do business.”
Trump often grows aggrieved seeing Cohen on TV, aides say. Among White House advisers, Cohen is seen as an existential threat — as much or more so than the Mueller investigation itself because of his longtime role as Trump’s fixer. Trump’s legal team did not learn until Thursday that Cohen had sat for dozens of hours of interviews with Mueller’s office, according to a senior administration official.
.. Trump was infuriated earlier this year when Cohen released tapes of him, and asked his lawyers and advisers if anything could be done to stop him from releasing any more.
.. According to a person familiar with the investigation, Cohen and the Trump Organization could not produce some of the key records upon which Mueller relies. Other witnesses provided copies of those communications.
.. Many in the White House try to avoid talking with the president about the Mueller probe, for fear they will be subpoenaed. And both of the aides said it was unclear why Trump was complaining more about the investigation recently. During the midterm campaign, the president occasionally told advisers that people had forgotten about the Mueller probe and remarked positively that it was no longer dominating TV headlines.
A road map from the Watergate prosecution shows a potential route for the special counsel to send incriminating evidence directly to Congress.
But a 44-year-old “road map” from the Watergate prosecution shows a potential route for Mr. Mueller to send incriminating evidence directly to Congress. The road map was devised in 1974 by the Watergate special prosecutor, Leon Jaworski, with our assistance. We wrote the road map — actually a report — to be conveyed to Congress; it was called “Report and Recommendation” and served as a guide to a collection of grand jury evidence contained in a single document. That evidence included still-secret presidential tape recordings that had been acquired through grand jury subpoena — but which had been withheld from Congress by President Nixon.
The recent decision by Washington’s Federal District Court chief judge, Beryl Howell, to release the document from the National Archives provides a historic legal precedent that could be a vehicle for Mr. Mueller and the grand jury assisting him to share the fruits of their investigation into possible criminal conduct within the Trump presidential campaign and subsequent administration.
.. In all the discussion about Mr. Mueller’s options when he concludes his investigation, little attention has been paid to the potential role of the grand jury. Chief Judge Howell’s decision unsealing the Watergate road map brings new focus on the role the grand jury might play in the dynamics of the endgame. Although the grand jury is a powerful tool for federal prosecutors, it has historic and independent power and operates under the supervision of the federal judiciary. Following the Oct. 20, 1973, “Saturday Night Massacre” — in which President Nixon forced the Justice Department to fire the original special prosecutor, Archibald Cox — the Watergate grand jury played a critical role in forcing the president to back down, hand over the subpoenaed tapes and appoint a new special prosecutor.
.. Although Mr. Cox had been fired, his staff — duly appointed federal prosecutors — had not. The grand jury, as an arm of the judicial branch, could not be fired by the president. Indeed, Judge John Sirica of the United States District Court immediately summoned the grand juries (there were two) to his courtroom and exhorted them to continue to pursue their investigations and assured them that they could rely on the court to safeguard their rights and preserve the integrity of their proceedings.
.. In the face of Congress’s inability to obtain evidence that the grand jury well knew incriminated the president, we prepared the grand jury report to Judge Sirica and requested that he use his plenary authority to transmit that evidence to the House Judiciary Committee
.. It was carefully written to avoid any interpretations or conclusions about what the evidence showed or what action the committee should take. The report contained a series of spare factual statements annotated with citations to relevant transcripts of tapes and grand jury testimony. Copies of those tapes and transcripts were included as attachments.
.. Much note has been made of the fact that the Justice Department regulations under which Mr. Mueller was appointed actually require him to submit a report to the attorney general. Importantly, nothing in the department regulations prohibits Mr. Mueller’s Department of Justice superior, now Mr. Whitaker, from refusing to release the report.
.. What if Mr. Mueller concludes that the president has committed a crime? The question of whether a sitting president can be indicted remains a subject of vehement debate among scholars. But assuming that Mr. Mueller follows what many regard as “current Justice Department policy” based on several past internal legal opinions that an indictment is inappropriate, then the appropriate place for consideration of evidence that the president has committed crimes rests definitively and exclusively with Congress.
.. If Mr. Mueller has obtained such evidence, his responsibility and the correct operation of our system of government compel the conclusion that he and the grand jury can make that evidence available to Congress through a report transmitted by the court.
.. With the fox now guarding the henhouse, there is sufficient precedent for the grand jury and Special Counsel Mueller to seek the chief judge’s assistance in transmitting a properly fashioned report to Congress.
Judge Kavanaugh, when it was his turn, was not laughing. He was yelling. He spent more than half an hour raging against Senate Democrats and the “Left” for “totally and permanently” destroying his name, his career, his family, his life. He called his confirmation process a “national disgrace.”
“You may defeat me in the final vote, but you will never get me to quit,” Judge Kavanaugh said, sounding like someone who suddenly doubted his confirmation to the Supreme Court — an outcome that seemed preordained only a couple of weeks ago.
Judge Kavanaugh’s defiant fury might be understandable coming from someone who believes himself innocent of the grotesque charges he’s facing. Yet it was also evidence of an unsettling temperament in a man trying to persuade the nation of his judicial demeanor.
.. As he put it in his testimony, “What goes around, comes around,” in the partisan vortex that has been intensifying in Washington for decades now. His open contempt for the Democrats on the committee also raised further questions about his own fair-mindedness, and it served as a reminder of his decades as a Republican warrior who would take no prisoners.
.. He gave coy answers when pressed about what was clearly a sexual innuendo in his high-school yearbook.
He insisted over and over that others Dr. Blasey named as attending the gathering had “said it didn’t happen,” when in fact at least two of them have said only that they don’t recall it — and one of them told a reporter that she believes Dr. Blasey.
.. Judge Kavanaugh clumsily dodged a number of times when senators asked him about his drinking habits. When Senator Amy Klobuchar gently pressed him about whether he’d ever blacked out from drinking, he at first wouldn’t reply directly. “I don’t know, have you?” he replied — a condescending and dismissive response to the legitimate exercise of a senator’s duty of advise and consent. (Later, after a break in the hearing, he apologized.)
.. Judge Kavanaugh gave categorical denials a number of times, including, at other points, that he’d ever blacked out from too much drinking. Given numerous reports now of his heavy drinking in college, such a blanket denial is hard to believe.
.. then there’s the fact that she gains nothing by coming forward. She is in hiding now with her family in the face of death threats.
.. cowardice of the committee’s 11 Republicans, all of them men, and none of them, apparently, capable of asking Dr. Blasey a single question.
.. Eventually, as Judge Kavanaugh testified, the Republican senators ventured out from behind their shield. Doubtless seeking to ape President’s Trump style and win his approval, they began competing with each other to make the most ferocious denunciation of their Democratic colleagues and the most heartfelt declaration of sympathy for Judge Kavanaugh, in a show of empathy far keener than they managed to muster for Dr. Blasey.
.. Pressed over and over by Democratic senators, Judge Kavanaugh never could come up with a clear answer for why he wouldn’t also want a fair, neutral F.B.I. investigation into the allegations against him — the kind of investigation the agency routinely performs, and that Dr. Blasey has called for. At one point, though, he acknowledged that it was common sense to put some questions to other potential witnesses besides him.
.. When Senator Patrick Leahy asked whether the judge was the inspiration for a hard-drinking character named Bart O’Kavanaugh in a memoir about teenage alcoholism by Mr. Judge, Judge Kavanaugh replied, “You’d have to ask him.”
Asking Mr. Judge would be a great idea. Unfortunately he’s hiding out in a Delaware beach town and Senate Republicans are refusing to subpoena him.
.. Why? Mr. Judge is the key witness in Dr. Blasey’s allegation. He has said he has no recollection of the party or of any assault. But he hasn’t faced live questioning to test his own memory and credibility. And Dr. Blasey is far from alone in describing Judge Kavanaugh and Mr. Judge as heavy drinkers; several of Judge Kavanaugh’s college classmates have said the same.
.. If the committee will not make a more serious effort, the only choice for senators seeking to protect the credibility of the Supreme Court will be to vote no.