One odd wrinkle about the Cohen campaign finance case: Trump could have legally paid off Stormy Daniels and Karen McDougal as long as he used campaign funds and reported the expenditure. And Trump wouldn’t have had to report the expenditure as “hush money to mistresses” or anything so damning. Campaign finance law experts have said he could have reported it as “legal services” or “litigation settlement.”
Indeed, they wouldn’t have needed to report the October 27 payment to Stormy (in contrast to the earlier McDougal payment) until after Election Day under Federal Election Commission rules.
So Cohen and Trump could have gone the legal route and quite possibly gotten away with it. Why didn’t they? Perhaps they were too ignorant to know this was an option, or they were paranoid that the underlying facts would somehow leak before the election.
The lessons here are to hire competent lawyers and listen to them, don’t have mistresses, and don’t pay them off. It’s good to have a lawyer, bad to have a mistress, and perilous to hush either.
.. Speculation has been building for months about the report that special counsel Robert S. Mueller III is obligated to write under the regulation governing his appointment. When will it come out? Will Rudolph W. Giuliani really write a “rebuttal” on President Trump’s behalf? Can the acting attorney general — whom Trump seems to have named to the job in a bid to exert more control over Mueller — or his replacement prevent the report from being made public, effectively burying whatever the investigation has found?
But Mueller has already been submitting his report, piece by piece, in indictments and other charging documents. He has hidden it in plain sight in the court dockets of individuals and organizations he has prosecuted. Many of those court papers have included far more detail than necessary to prove the culpability of defendants who have agreed to plead guilty. This isn’t just legal overkill on Mueller’s part — it’s the outlines of a sweeping narrative about the 2016 election.
.. Incoming and outgoing officials have more than Trump in common. Each American that works for this president does so knowing that there is a big chance they’ll end up implicated, perhaps inadvertently, in ongoing investigations. Every decision that the president has made, and will make, on Russia policy could be tainted by his other interests which should lead the special counsel (and perhaps the new Congress) to question officials about whether these conflicts of interests impacted policy decisions. Officials who served with Trump on the campaign, or are administration officials referenced in the Mueller filing on Manafort or as part of the work on Russia-related matters Mueller mentioned in his separate Cohen filing, likely have information pertinent to criminal proceedings.
Obvious question: Why would the SDNY federal prosecutors spend time determining whether they could indict Trump after he leaves office if they didn’t think they could possibly obtain sufficient evidence to convict him?
Obvious answer: The prosecutors weren’t wasting their time. https://t.co/DFqJUl6GGg
— Renato Mariotti (@renato_mariotti) December 9, 2018
.. Intelligencer’s Eric Levitz on how crazy it could get in 2020 if Trump isn’t just fighting for his presidency, but to avoid a post-presidency indictment for campaign finance crimes:
[Trump had little personal stake in this year’s midterms, and] yet, to boost his party’s 2018 prospects, the president proved willing to fabricate an impending “invasion” by migrant terrorists and gangsters; suggest that said invasion was being organized by the Democratic Party as part of an elaborate bid to steal the midterm elections; persist in fomenting such incendiary conspiracy theories even after they inspired one of his supporters to attempt the assassination of many leading Democrats; and deploy thousands of U.S. troops to the southern border, so as to give his big lie an extra measure of credibility.
Even before Mueller’s latest revelations, this behavior was sufficient to prompt widespread anxiety about what Trump would be willing to do to win reelection, and/or what he might incite “Second Amendment people” to do should he lose it. If the president’s personal freedom ends up on the ballot in 2020, a lot of worse-case-scenarios become more plausible.
.. Russia not only knew that Trump was lying, but when investigators first started looking into this deal, the Kremlin helped Trump cover up what really happened. That made Trump doubly compromised: first, because he was eager to get the financial payout and second because Russia had evidence he was lying to the American people — evidence they could have held over Trump by threatening to reveal at any time.
Since the president’s embarrassing performance at the Helsinki summit with Vladimir Putin — when he kowtowed to a foreign adversary rather than stand up for American interests — there has been open speculation about what leverage the Kremlin has over him. Now we know at least part of the picture, raising the specter of what other information Putin has, and how he is using it to influence Trump’s policy decisions.
.. The Guardian spoke with former prosecutors about the new filings and Robert Mueller’s tactics, and ended up having to include this telling disclaimer:
All the former prosecutors the Guardian spoke with cautioned that they did not mean by their analysis to say that Trump is a mob boss, or that the Mueller investigation is strictly an organized crime investigation. But the similarities kept coming up.
To wit, from the former deputy chief of the organized crime unit in the Southern District of New York:
“To play the mafia analogy out a little further,” [Daniel] Goldman said, “mob bosses hold sway over their soldiers because they hold the purse strings for their soldiers and their soldiers’ families, particularly when they go to jail, and they sort of rule with an implicit iron fist that reacts to cooperation with violence up to, potentially, death.
“Trump holds sway over his associates through his presidential pardon power and he’s not afraid to explicitly reference that power in connection to individuals who may have information about his own criminal activity. And so the parallels are very strong.”
.. And the most likely scenario now is that there was no division between the apparent Trump-Russian collusion on business matters and in the election. The coincidences are piling up. The conversations are piling up. And Mueller’s evidence is clearly piling up as well.
.. Speaking with the Guardian, Patrick Cotter, a former federal prosecutor who was helped take down mobster John Gotti, also suggested that the current phase of Mueller’s strategy is more midgame than endgame:
I think these past couple weeks have shown us that we’re not really in the ninth inning as some people had said … that Mueller’s still got a lot of information that he’s processing and dealing with that’s turning into potentially criminal charges — and I think that the bigger picture is sort of starting to come into focus.
We’re in stage two. We’re hearing the indictments and the pleas, people cooperating. Then there’s going to be a stage three, where people who are not cooperating, just — the hammer falls. And I don’t know if it’s going to be Don Jr., or [Jared] Kushner, or who knows. But I think it’s going to happen, and I can’t tell you when. But I think it’s going to happen.
.. It also seems clear that Russia must have been overjoyed with the success of their meddling, as Garrett M. Graff sums up for Wired:
What intelligence professionals would call [the Kremlin’s] assessment and recruitment phases seems to have unfolded with almost textbook precision, with few stumbling blocks and plenty of encouragement from the Trump side. Mueller’s court filings, when coupled with other investigative reporting, paint a picture of how the Russian government, through various trusted-but-deniable intermediaries, conducted a series of “approaches” over the course of the spring of 2016 to determine, as [Lawfare’s Benjamin] Wittes says, whether “this is a guy you can do business with.”
The answer, from everyone in Trumpland— from Michael Cohen in January 2016, from George Papadopoulos in spring 2016, from Donald Trump Jr. in June 2016, from Michael Flynn in December 2016 —appears to have been an unequivocal “yes.”
.. At the New Yorker, Adam Davidson tries to put the memos in perspective, especially focusing on Mueller’s Cohen sentencing statement and what it says about Trump’s least favorite word:
The filing comes close to suggesting collusion without actually making that case. Mueller notes that Cohen’s effort to engage Russia with Trump’s knowledge and consent “occurred at a time of sustained efforts by the Russian government to interfere with the U.S. presidential election.” Mueller provided another hint by praising Cohen for providing the special counsel’s office “with useful information concerning certain Russia-related matters core to its investigation.” There is arguably only one matter core to the Mueller investigation, as defined by Mueller’s appointment as special counsel: “to ensure a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election … [and] any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” If Cohen’s information is core to the Mueller investigation, it is reasonable to conclude that Mueller does, indeed, believe he can prove that there was collusion between the Trump campaign and the Russian government.
However — perhaps maddeningly for people who have been waiting for clarity on Mueller’s investigation — he does not, in the sentencing memo, lay out the details of possible collusion. But the document tells another damning story: Cohen repeatedly lied about his work, on behalf of Trump, to make money and develop political ties with the Kremlin. His lies were “a deliberate effort” intended “to set the tone and shape the course of the hearings in an effort to stymie the inquiries.”
.. The memo states that Cohen’s actions, “struck a blow to one of the core goals of the federal campaign finance laws: transparency. While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows.” His sentence “should reflect the seriousness of Cohen’s brazen violations of the election laws and attempt to counter the public cynicism that may arise when individuals like Cohen act as if the political process belongs to the rich and powerful.”
One struggles to see how a document that alleges that such conduct took place at the direction of Individual-1 “totally clears the president.”
.. [I]it is highly likely that senior Trump officials reviewed Cohen’s prepared, false testimony before he lied to Congress. This raises two important questions. Was Trump aware of the substance of Cohen’s testimony? If so, was Trump aware that Cohen’s testimony was false?