George Conway: Trump is guilty — of being unfit for office

Let’s start with question of “collusion.” It was never precisely clear what that nonlegal concept meant. If it means what Mueller reasonably took it to mean — an “agreement,” “tacit or express,” with the Russians to interfere with the 2016 presidential election, or, in effect, a conspiracy with the Russians — then it was always virtually unimaginable that collusion, so defined, would ever be found. Russian agents didn’t need Americans to help them do what they were doing — hacking and posting disinformation. If anything, involving Americans, including some apparently blockish ones, could only have fouled up their plans. “Collusion” — or, rather, “no collusion” — was bound to become a straw man for President Trump and his supporters to knock down with glee.

Yet that hardly means that the investigation (which, thanks to Paul Manafort’s largesse, actually turned a neat profit) was either a “witch hunt” or a waste of time. After all, it was a counterintelligence investigation as well as a criminal probe. A core objective — the overarching one, really — was to find out exactly what the Russians were doing. Another was to find out whether there were “links” between the Trump campaign and Russia’s activities. As matters turned out, and quite surprisingly, we now know from public sources that there were links aplenty. So who knows what we might learn on these subjects from Mueller’s still-unreleased report? As Senate Majority Leader Mitch McConnell (R-Ky.) said Monday, “Russia’s ongoing efforts to interfere with our democracy are dangerous and disturbing.” He added that he would “welcome” the special counsel’s contributions toward understanding them.

As for whether the president obstructed justice, that question was always dicey. No one should have been surprised that it raised, as Attorney General William P. Barr’s letter put it, quoting Mueller, “ ‘difficult issues’ of law and fact concerning whether the President’s actions and intent could be viewed as obstruction.” On the law, Barr was probably not wrong to suggest, as he did as a private citizen, that there’s a difference under the statutes between a president destroying evidence or encouraging a witness to lie and a presidential directive saying, “Don’t waste your time investigating that.” But that doesn’t mean the latter can’t be an impeachable offense.

On the facts, obstruction turns on what’s in a defendant’s mind — often a difficult thing to determine, and especially difficult with a mind as twisted as Trump’s. And complicating things even more, paradoxically, is the fact that some of Trump’s arguably obstructionist conduct took place in full public view — something that, with a normal person with normal moral inhibitions, would have indicated a lack of criminal intent. But in the head of Donald J. Trump, who knows?

So it should have come as no surprise that the obstruction case was difficult, and inconclusive. But Barr’s letterrevealed something unexpected about the obstruction issue: that Mueller said his “report does not conclude that the President committed a crime” but that “it also does not exonerate him.” The report does not exonerate the president? That’s a stunning thing for a prosecutor to say. Mueller didn’t have to say that. Indeed, making that very point, the president’s outside counsel, Rudolph W. Giuliani, called the statement a “cheap shot.”

But Mueller isn’t prone to cheap shots; he plays by the rules, every step of the way. If his report doesn’t exonerate the president, there must be something pretty damning in it about him, even if it might not suffice to prove a crime beyond a reasonable doubt. And in saying that the report “catalogu[ed] the President’s actions, many of which took place in public view,” Barr’s letter makes clear that the report also catalogues actions taken privately that shed light on possible obstruction, actions that the American people and Congress yet know nothing about.

At the same time, and equally remarkably, Mueller, according to Barr, said he “ultimately determined not to make a traditional prosecutorial judgment” regarding obstruction. Reading that statement together with the no-exoneration statement, it’s hard to escape the conclusion that Mueller wrote his report to allow the American people and Congress to decide what to make of the facts. And that is what should — must — happen now.

But whether the Mueller report ever sees the light of day, there is one charge that can be resolved now. Americans should expect far more from a president than merely that he not be provably a criminal. They should expect a president to comport himself in accordance with the high duties of his office. As all presidents must, Trump swore an oath to preserve, protect and defend the Constitution, and to faithfully execute his office and the laws in accordance with the Constitution. That oath requires putting the national interests above his personal interests.

Yet virtually from the moment he took office, in his response to the Russia investigation, Trump has done precisely the opposite:

If the charge were unfitness for office, the verdict would already be in: guilty beyond a reasonable doubt.

‘Show Us Your Bone Spurs’: McCain Colleague Rebukes The President’s Attacks | Deadline | MSNBC

WaPo’s Robert Costa, AP’s Jonathan Lemire, former DOJ spox Matt Miller, NBC’s Carol Lee, and MSNBC contributor Karine Jean-Pierre on the divide within the Republican party over Trump’s continued attacks on the late Sen. John McCain

Trump’s claim that he didn’t violate campaign finance law is weak — and dangerous

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.

Begin with the Edwards case. The former senator from North Carolina and two-time Democratic presidential candidate was charged in 2011 with multiple campaign finance felonies in connection with payments that one of Edwards’s supporters made to a woman with whom Edwards had an extramarital sexual relationship. Prosecutors alleged that this money was paid, with Edwards’s knowledge, to influence the election, and therefore that the payments were illegal campaign contributions. When the case went to trial, the jury hung on most counts and acquitted on one, which Trump’s defenders point to for support.
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.

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.

Finally, all the money that changed hands in the Edwards case came from an individual. In the scheme to prevent Karen McDougal from talking about an affair she says she had with Trump, some payments originated from a corporation — AMI. The use of corporate funds to make a contribution to a presidential campaign has been illegal for decades. That makes the offense in Trump’s case significantly more serious than the charges against Edwards, or even the already serious charges Trump could face for conspiring with Cohen to make illegal and unreported individual contributions. And because the source of the payments can ultimately be traced back to the Trump Organization, prosecutors have many robust sources of evidence to comb. Those sources already suggest there were false payments (which would likely violate federal and state tax laws) and “grossing up” of Cohen’s money to account for his personal taxes. All of this may amount to consciousness of guilt and may also be a path for prosecutors to discover who authorized the payments in the first place (likely “Individual-1” or one of his children). The evidentiary record is going to reveal how involved Trump and his family was in these payments — a corporate record that was completely nonexistent with Edwards.

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.