“If those payments were a crime for Michael Cohen, then why wouldn’t they be a crime for Donald Trump?”
Lanny Davis, Michael Cohen’s lawyer, 21 August 2018 (on Twitter)
The aim of this article is to try to glean what happens next in the light of a plea of guilty to eight felony charges by President Donald Trump’s former personal lawyer Michael Cohen and the more or less simultaneous conviction on eight counts of his former campaign head, Paul Manafort. This is by no means straightforward. There are several separate but related strands to consider. And there are innumerable permutations, not least revolving around precisely how Mr Trump himself responds. If press reports are correct that the White House has no preconceived strategy to deal with the events of 21 August (which seems highly probable), this is even harder than usual to predict beyond the high probability that the President will look for ways quickly to seize back control of the news flow (see Q1 below); and that he will certainly be prepared to play hardball as we saw with Omarosa Manigault Newman earlier this month.
So, what follows represents my best estimate based on a good deal of research and on the opinions of genuine experts in the relevant fields.
To save readers who are suffering (understandably) from ‘Trump scandal fatigue’ but who may be interested in the odd angle (eg possible impact on the midterms) from having to wade through the proverbial ‘swamp’ as a whole, I have posed — and tried to answer — what I see as fifteen key questions arising from these two events.
1. Will Mr Cohen’s pleas in particular significantly dent Mr Trump’s approval ratings?
Almost certainly not.
The respected RCP Average has had Mr Trump more or less range bound between 42 and 44% since 1 February (with his disapproval rating similarly tied in between 51 and 54%). Among registered Republicans, he consistently stands at around 87%. This suggests that he can reasonably count on core support of around this level given how deeply polarised US politics has become. And we can reasonably assume, based on his conduct throughout his time in office, that Mr Trump will take steps in the coming days which play to his base, starting with the already determined imposition of more tariffs on imports from China at the end of this week despite ongoing bilateral talks in Washington and ramping up efforts to discredit Mr Cohen personally.
2. Will the Republicans’ prospects in the midterms nevertheless be damaged?
I think not.
Indeed, there is a case for arguing that Republican prospects may even improve a little at the margin. Nevertheless, I doubt that this will be enough to prevent the Democrats from winning control of the House.
This is not so much a matter of voters changing sides but about the enthusiasm gap, currently pointing to a significantly larger turn-out among Democrat voters than Republican.
Republican lawmakers, consistent with the established pattern on ‘difficult’ Trump-related issues, are doing their best to ignore Mr Cohen’s revelations. However, former senior Trump aide Stephen Bannon, presumably with the aim of firing up Republicans to vote in the midterms, claimed after the Cohen and Manafort news had broken as follows:
“Tonight brings November into complete focus. It will be an up or down vote on the impeachment of the President. The Democrats have long wanted this fight and now they have it.”
Personally, I find this somewhat hyperbolic. Especially with Democrats, seemingly by design, avoiding a big unifying theme in their midterm campaigning; and with the Republicans, Mr Trump included, understandably wanting to focus on the economy. But it is now hard to imagine that the impeachment threat (see Q4 below) will not feature at all and I suspect Mr Bannon may have a point, ie that threat may, if anything, boost Republicans’ enthusiasm to vote more than it does already driven Democrats. After all, all the evidence from elections over the past twelve-plus months points to Democrats already being fired up; so it is doubtful that these latest events will do much more than confirm their determination to get out and vote come 6 November.
This being said, more or less buried under accounts of the courtroom dramas is a related 21 August event which could influence the outcome of the midterms, about which Anthony Zurcher of the BBC wrote as follows:
“Earlier in the day Democratic Senator Elizabeth Warren unveiled a sweeping programme of political reform measures she said were necessary to address widespread political corruption in Washington DC. That included a ban on all lobbying by former top government officials, a prohibition of all members of Congress and White House staff from holding individual corporate stocks and a requirement that all president and vice-presidential candidates disclose eight years of tax returns.
Similar calls for fixing a broken political system helped Democrats sweep into power in Congress in 2006. It did the same for Republicans in 1994. Mr Trump's ‘drain the swamp’ rhetoric was a constant rallying cry for his supporters in 2016.
After Tuesday's onslaught of convictions, pleas and indictments, [Ms] Warren’s slate of proposals could prove to be a potent mid-term weapon for Democrats this November, if they know how to use it.”
Mr Zurcher’s final words are particularly valid, ie the Democrats need to be very careful about the risk of overkill.
3. But won’t yesterday’s courtroom dramas quickly be forgotten as the news cycle moves on?
If the past 17 months are anything to go by, to an extent they will.
This despite press claims that this was Mr Trump’s worst day since he assumed office are almost certainly justified.
BUT there is a critical difference this time in that the events of 21 August will fade principally because worse for Mr Trump is almost certain to follow as legal actions relating to both Mr Cohen and Mr Manafort continue to unfold (see Q10 and Q11 below).
4. Has the probability of an impeachment motion being filed against Mr Trump gone up?
My answer to Q2 above notwithstanding, it has.
As I noted in answering Q2, even if the threat of impeachment does get Republicans out in greater numbers on 6 November, I still think the Democrats will win control of the House. As things stand, the RCP Average has 199 seats as ‘likely’ or ‘leans’ Democrat compared to 193 for the Republicans, leaving 43 ‘toss ups’, all but two of which the Republicans have to defend. So, although I would argue that it is by no means a slam-dunk for the Democrats as yet, they do appear to be well placed. The bookmakers agree, giving the Democrats a respectable 64% probability of taking control of the House (but only a 27% probability of winning a Senate majority).
Even though they have been trying, to date, to avoid mentioning the ‘I-word’, I have consistently taken the view that, if they do win control of the House, the Democrats will be unable to resist the temptation to file an impeachment motion even though it would have little chance of approval in the Senate. Mr Cohen’s plea has, if anything, made that temptation even more irresistible.
In sum, an impeachment motion which has always seemed to me to be probable (despite the reservations of House minority leader Nancy Pelosi — who may, in any case, be dumped by her party after the elections) now appears overall to be more likely still.
5. Does this mean Mr Trump will be impeached and removed from office?
Very unlikely still.
No US president has ever been removed from office following impeachment. And, on the basis of what we know today, I find it very hard to imagine that the required two-thirds of the Senate would vote for such in the case of Mr Trump even if the Democrats were to secure a majority there too. Indeed, I suspect that nothing short of cast iron proof that Mr Trump personally and knowingly colluded with a foreign power to corrupt the 2016 US election would spur sufficient Republicans even seriously to consider voting for impeachment.
And we should not assume that a failed impeachment attempt would significantly damage Mr Trump’s prospects of reelection in 2020 (if at all); it’s hypothetical, of course, but I reckon Bill Clinton would have beaten George W Bush pretty convincingly in 2000 had he been allowed to run.
6. Will Mr Trump be indicted as a result of Mr Cohen’s pleas and Mr Davis’s tweeted question?
Almost certainly not.
This is something of a legal grey area in that the principle of a sitting president being indicted has never been tested in the Supreme Court. However, the Justice Department has long held the view that sitting presidents cannot be subject to criminal prosecution.
Of course, Special Counsel Robert Mueller could decide to test the Justice Department’s view. But he would first need permission from Assistant Attorney General Rod Rosenstein to ask a grand jury to indict. Mr Mueller is a careful and meticulous investigator and I think it very unlikely that he would take such a leap into the legal unknown, even putting to one side the political minefield which he would have to negotiate. Furthermore, the office of the Special Counsel has told Mr Trump’s lawyers that they would not indict the President no matter what evidence they found against him.
This still leaves open the possibility, in principle at least, of an indictment after Mr Trump leaves office. However, as far as Mr Cohen’s 21 August claims are concerned my understanding is that this would have to happen no later than mid-2021 (ie requiring Mr Trump to fail to win a second term) thanks to the statute of limitations for campaign financing offences.
[Note: It is something of an aside but keep in mind too that it is not a criminal offence in America to lie to the press. So, no matter how frequently he has openly contradicted himself, much of what Mr Trump has said publicly may be of no legal (as opposed to political) consequence — unless, that is, it can somehow be tied in to an obstruction of justice case.]
7. Will these latest developments finally provoke Mr Trump into firing Mr Mueller?
Amid a plethora of ‘known unknowns’, this is one of the bigger — and most important — ones, the short answer to which is that I really do not know.
Writing in the 22 August edition of the Financial Times (subscriber access only), respected commentator Edward Luce, noting that a Democrat majority in the House would be able to reappoint Mr Mueller were the President to fire him, reckoned that the Special Prosecutor’s “biggest moment of danger is in the coming weeks”. And he offered the following to support his clear belief that the risk is non-negligible:
“[Mr Trump] has already twice tried [to sack Mr Mueller]. This time, aides may find it impossible to restrain the president. Before the latest verdicts, Mr Trump had already taken to calling Mr Mueller a ‘disgraced and discredited’ man and alleging that the former FBI chief — and registered Republican — is in cahoots with Hillary Clinton’s people. Mr Trump has called the prosecutors on Mr Mueller’s team ‘thugs’ and ‘angry Democrats’. He has also compared the special counsel’s work to the red scare investigations spearheaded by Senator Joe McCarthy in the 1950s….”
On the other hand, the fact that Mr Mueller got a convincing conviction on the first case he has brought to court (albeit on ‘only’ eight of the 18 counts) does give the Special Prosecutor more leverage to fight back against Mr Trump’s persistent claims of a “witch hunt” (whereas an acquittal for Mr Manafort could have been disastrous for the investigation).
[Note—24 August: See also the second paragraph of the 24 August update at the end of this article.]
8. Are we nearing the end of the Mueller investigation in any case?
Almost certainly not.
Contrary to the claims of Mr Trump’s personal lawyer, Rudi Giuliani, there is no evidence to suggest that the investigation will wrap up by 1 September — or, for that matter, before the midterms. But it would not surprise me at all if Mr Mueller were to drop a couple more bombshells in the coming weeks as his investigation continues to grind forward.
9. Will Mr Mueller now get to interview Mr Trump?
Another ‘known unknown’ but, on balance, I think not.
From time to time, Mr Trump has indicated that he is not only willing to sit down with Mr Mueller but even eager. Nevertheless, the most recent indications, ie reference by both Mr Trump and Mr Giuliani to the “perjury trap” (even though neither seems to understand the term), are that he is no longer willing to do so voluntarily.
Thus, the real questions now may be:
(a) Will Mr Mueller subpoena Mr Trump, and
(b) If he does, would Mr Trump appeal against the subpoena, which some legal experts believe would quickly see the matter in the hands of the Supreme Court?
I have no inside information on this but my sense is that the cautious Mr Mueller is unlikely to subpoena Mr Trump in the near term, not least since he would be by no means certain of securing a favourable ruling from the Supreme Court, perhaps especially after Mr Trump’s latest nominee, Brett Kavanaugh, who has written at length to the effect that the courts should not hinder the president’s ability to do his job, is confirmed.
10. What next for Mr Cohen?
The President’s former ‘fixer’ seems very likely to testify to the Mueller investigation.
The case concluded on 21 August is separate to the Mueller investigation even though it was based in significant part on evidence handed over by the Special Prosecutor to the Southern District of New York, which brought it. Furthermore, Mr Cohen’s plea agreement does not require that he testifies to the Mueller investigation.
However, The New York Times quotes criminal law expert Ross Garber as follows:
“[Mr] Cohen has done everything but shout from the rooftops that he wants to cooperate. I expect the government is interested in what he has to say, and then can evaluate whether there is any value to it.”
There is plenty of time for this to happen still. Mr Cohen is not due to be sentenced until November, when expert opinion points to a custodial term of between 46 and 63 months — which is a drop in the ocean compared to the 65 years he could have faced had the case gone to trial but still…. Unless he believes that Mr Trump is likely to pardon him (see Q12 below) he may well be hoping that he can give Mr Mueller sufficient information — notably on whether Mr Trump knew in advance of the June 2016 meeting in Trump Tower with a Kremlin-linked Russian lawyer (see Q14 below)— in return for maximum leniency.
An op-ed piece by former federal prosecutor Ken White in the 22 August edition of The New York Times makes interesting reading in this context as follows:
“Mr Cohen could also provide information to the special counsel, Robert Mueller, and testify before a congressional committee investigating the president’s conduct. Mr Davis [ie mr Cohen’s lawyer] suggested Tuesday night that Mr Cohen has information about the infamous Trump Tower meeting with Russian agents, and perhaps even about Mr Trump’s foreknowledge and approval of Russian hacking of Democratic servers. That’s dynamite, and much closer to the Russian conspiracy that Mr Trump has steadfastly denied.
If Mr Cohen has this great dirt, why hasn’t Mr Mueller already locked him in with a cooperation agreement? Mr Mueller is a cautious man; Mr Cohen, manifestly, is not. If the special counsel enlisted Mr Cohen formally, that agreement would come with all of his credibility problems and tendency to act impetuously. Now Mr Cohen’s plea has thoroughly rattled the administration. Mr Trump and his gaffe-prone lawyer Rudy Giuliani react badly to pressure and will most likely respond with incriminating statements. And Mr Mueller will no doubt be watching. This is what federal prosecutors do best: provoke foolish reactions.”
It is also worth noting that on 20 August the judge overseeing the review of materials seized by the FBI in April during raids on Mr Cohen’s office, apartment and hotel room formally accepted that the vast majority of the documents were not covered by attorney-client privilege and should therefore be released to the Special Prosecutor’s office, possibly providing valuable information in which the contextualise anything more Mr Cohen wishes to offer.
Whether or not, Mr Cohen does give evidence to the Mueller investigation, as a result of the 21 August hearing he has been subpoena-ed by New York Attorney General’s office as part of its ongoing investigation into the Trump Foundation. This too will add to the pressure on Mr Trump and members of his family.
11. And for Mr Manafort?
In common with Mr Cohen, Mr Manafort is not currently cooperating with the Special Counsel; but that may be about to change.
An article by Emily Cochrane and Sharon LaFraniere in the 21 August edition of The New York Times offers the following:
“Now that he has been convicted, Mr Manafort, the highest ranking campaign official to be charged so far by Mr Mueller’s team, might be more willing to cooperate with the special counsel’s office in hopes of a lighter sentence. The two bank fraud counts he was convicted on each carry a maximum term of 30 years; the other charges carry maximum terms of three to five years.
Mr Manafort, 69, was connected to a number of meetings, relationships and events during the 2016 campaign that Mr Mueller and his team have been investigating. Among them was the June 2016 meeting in Trump Tower with a Kremlin-connected Russian lawyer. The meeting was set up through an intermediary with Donald Trump Jr, who was promised dirt on Mr Trump’s Democratic opponent, Hillary Clinton. The president has denied knowing about the meeting, but it remains a focus of the Mueller inquiry.”
In any case, Mr Manafort faces a second trial next month as a result of the Mueller investigation, this time in Washington DC on seven charges, including obstruction of justice, failure to register as a foreign agent and conspiracy to launder money.
He may also face a retrial on the ten counts which were declared a mistrial by the judge on 21 August after the jury failed to reach a consensus. The Special Prosecutor’s office has until 29 August to decide whether to pursue.
See also Q12 below for more on the mounting pressure on Mr Manafort.
12. Will Mr Trump pardon Mr Cohen and/or Mr Manafort?
For Mr Cohen unlikely; for Mr Manafort maybe but it may not be enough.
According to The New York Times, Mr Cohen’s legal team made informal soundings of the President’s several months ago about a possible pardon. There is, presumably, still a possibility of this happening especially if Mr Trump believes that Mr Cohen has more damaging ‘dirt’ on him which he could use to win greater leniency on his current likely custodial sentence (see Q10 above). But despite his seeming penchant for pardons there has as yet been no indication that Mr Trump is seriously considering such a move in the case of Mr Cohen.
In the case of Mr Manafort, however, Mr Trump appears to be considerably more sympathetic. However, an article in The New York Times of 21 August by three senior lawyers makes it clear that even a presidential pardon may be insufficient to keep Mr Manafort out of jail, as follows:
“…should Mr Trump pardon him, Mr Manafort should expect state attorneys general to pick up under applicable state laws the threads of corruption and tax fraud that Mr Mueller has already woven together. Unlike the federal crimes for which he has been convicted, state crimes cannot bewiped away with a presidential pardon. The risk of state charges maintains the pressure on Mr Manafort to cooperate — especially after Tuesday’s conviction revealed what jurors think of his questionable business practices and other activities.”
13. Remember Michael Flynn?
He may yet prove to be a key player in the Mueller investigation.
Something else you may have missed on 21 August (see Q2 above) was that the Special Counsel’s office requested, and received, a further delay in the sentencing of Mr Trump’s former National Security Advisor.
The BBC’sAnthony Zurcher commented as follows:
“That would indicate that [Mr] Flynn, who has admitted to lying to the FBI about his contacts with Russian officials during the Trump presidential transition, is still co-operating with Mr Mueller and that his usefulness to the investigation is ongoing. It might also mean that a formal sentencing hearing could reveal information Mr Mueller would prefer to keep secret at this time.
Either way, it's a sign that, behind the scenes, gears are still grinding in Mr Mueller's investigation.”
14. More high level indictments to come?
Given their personal involvement in the June 2016 Trump Tower meeting it is not hard to imagine that Donald Trump Jr and Jared Kushner could yet be indicted even though neither is known to have been interviewed as yet by Mr Mueller’s team and there have, to date, been no indictments for collusion. Furthermore, there may be aspects of their business activities on which they are potentially vulnerable. However, it is not clear whether Mr Cohen has firm evidence to back up the claim that Mr Trump himself knew about the meeting in advance.
[Note— 25 August: See also my 25 August update at the end of this article.]
15. Will Stormy strike?
Stormy Daniels (see my 8 April article)is renewing her attempts to get Mr Trump to make a deposition under oath and may now succeed.
Her lawsuit to try to get out of a non-disclosure agreement with Mr Trump which was brokered by Mr Cohen was put on hold pending the criminal investigation into the latter, which seems to have been resolved. Her lawyer, Michael Avenatti, tweeted as follows immediately after the 21 August Cohen hearing:
“The developments of today will permit us to have the stay lifted in the civil case & should also permit us to proceed with an expedited deposition of Trump under oath about what he knew, when he knew it, and what he did about it. We will disclose it all to the public.”
If Mr Trump can be forced to give testimony under oath either by Ms Daniels or by Karen McDougal (respectively ‘woman-2’ and ‘woman-1’ in Mr Cohen’s plea agreement) — not forgetting Summer Zervos who has a deformation case against Mr Trump outstanding in connection with alleged sexual harassment — the perjury trap could all too readily be sprung. Keep in mind that it was in similar circumstances in a case brought by Paula Jones that Bill Clinton perjured himself in a deposition, leading to his impeachment.
Update: 24 August
Shortly after I published there was a surprise development. Magazine publisher and long-time Trump friend and ally David Pecker, together with one of his chief officers Dylan Howard, reportedly gave testimony to New York prosecutors in the Michael Cohen case in return for immunity. The two are believed to have been involved in the transactions with both Ms Daniels and Ms McDougal; and, in my personal opinion, it is reasonable to assume that their testimonies are supportive of Mr Cohen's plea statement. However, what is not clear at this stage is when Messrs Pecker and Howard did the deal with prosecutors, ie: whether it was part and parcel of constructing the case against Mr Cohen himself; or whether it came later, which would suggest that it could be an element in building a case against a person or persons higher up in the Trump organisation. The fact that the investigation is reportedly continuing is indicative of the latter, which may spell yet more trouble for Mr Trump.
Mr Trump's 23 August attack on Attorney General Jeff Sessions (or his subsequent twitter storm against Mr Sessions this morning), on the other hand, should have come as no surprise — even if it was even more venomous than previous outbursts. And this was not the first time Mr Sessions has hit back publicly (the first being just before Mr Trump felt it necessary to rush out an early announcement on steel and aluminium tariffs to seize back control of the news flow) — although he too was much more robust than previously. Knowing that firing Mr Sessions, who is very popular with Republicans in Congress (even though he appears to have lost the important support of Senate Judiciary Committee Chairman Chuck Grassley thanks to a disagreement over prison reform) and with conservative voters, would likely cause him still more problems, Mr Trump may be pushing Mr Sessions to quit. In which event, the President may opt to nominate a successor who would be prepared to fire both Mr Mueller and Mr Rosenstein. If this is his intention and Mr Sessions does resign, Mr Trump may find that he is testing the very limits of loyalty to him among Republicans in the Senate (Mr Grassley notwithstanding). But with pressure on him mounting seemingly day by day I would certainly not rule this out.
[Note — 25 August: I cannot resist remarking on the irony of Senate Democrats, once rabidly opposed to his appointment, rallying around Mr Sessions to defend him against Mr Trump, albeit primarily in order to protect Mr Mueller. Politics does indeed make strange bedfellows.]
Update: 25 August
And another surprise on 24 August when numerous US media outlets (starting with the Wall Street Journal) reported that Allen Weisselberg, the long-serving Chief Financial Officer of the Trump Organisation, has also been granted immunity in return for cooperating with investigators in New York. As is the case with Messrs Pecker and Howard, it is not clear at present whether Mr Weisselberg's cooperation is purely in relation to Mr Cohen; or whether he is also cooperating with prosecutors in connection with further possible indictments. The latter would potentially be very serious for the Trump family as Mr Weisselberg, by all accounts, probably knows more about the Trump Organisation's (and Trump Foundation's) financial dealings than anyone except (and, possibly, even including) Mr Trump himself. Furthermore, even if Mr Trump were to fire Mr Mueller it would not bring the investigations in New York to a close. No wonder the President has been railing against 'flipping'!