SDNY VS. POTUS
Feds Now Have Evidence Trump Broke the Law to Become President. Will Whitaker Bury It?
Prosecutors won’t likely charge a sitting president, yet have implicated him in a criminal scheme to pay off Stormy Daniels and Karen McDougal. What to do then? Go to Congress.
Friday’s in-depth Wall Street Journal report suggests the U.S. Attorney’s Office of the Southern District of New York and the FBI appear to possess evidence of Donald Trump’s involvement in a criminal scheme that helped get him elected president. This raises serious questions about what comes next, particularly in light of Trump’s appointment of Matthew Whitaker, a political loyalist, as acting attorney general.
Trump played a central role in hush-money payments made to Karen McDougal and Stephanie Clifford during the 2016 presidential campaign, the Journal reports, adding more detail to the case of Michael Cohen, Trump’s former fixer-lawyer who pled guilty to federal campaign finance violations in the Southern District in August.
Recall that when Cohen pleaded guilty in federal court, he stated under oath that he had made the payments “in coordination and at the direction of a candidate for federal office”—many assumed that that candidate was Trump, of course. We now know from the Journal that the person who directed Cohen in this criminal scheme was, indeed, Donald Trump. The charging document to which Cohen pled guilty states that he “coordinated with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments.” The Journal reports that “[t]he unnamed campaign member or members referred to Mr. Trump, according to people familiar with the document.”
In addition, we now know that the evidence of Trump’s involvement in this criminal scheme is not limited to Cohen. Even accounting for the likelihood that the piece relies in some part on information provided by Cohen himself, there are plenty of other sources weighing in; the reporters note they obtained information from “interviews with three dozen people who have direct knowledge of the events or who have been briefed on them, as well as court papers, corporate records and other documents.”
Of course there is an important caveat here that what can be reported in the Wall Street Journal doesn’t always translate into usable evidence in the grand jury—in other words, people who are willing to talk to the press may not be as willing or as thorough when it comes to giving testimony to federal prosecutors or a grand jury. But, the Journal article contains an important nugget along these lines: “In August, [prosecutors] outlined Mr. Trump’s role—without specifically naming him—in a roughly 80-page draft federal indictment they had been preparing to file against Mr. Cohen.” As former federal prosecutors, that tells us that the SDNY had evidence of Trump’s involvement even before Cohen pled guilty and began cooperating.
All of this, taken together, indicates that evidence of Trump’s involvement in the hush-money scheme would be a combination of witnesses and other evidence not limited to Cohen, which makes it much more difficult for Trump to brush this off as lies concocted by Cohen to save himself, which Trump’s team have already begun arguing.
And, we know more about Trump’s role in this scheme from the article. For example, the story opens with a detailed recounting of a crucial and previously unreported August 2015 meeting between Trump and National Enquirer publisher David Pecker (who reportedly has been granted immunity to testify by the SDNY) during which Trump asked Pecker how he could help the campaign. Pecker reportedly offered to use his tabloid newspaper to purchase and squash the stories of women alleging affairs with Trump (which he did months later with McDougal).
This conversation, on its own, establishes Trump’s direct involvement with and direction of the hush money payment: precisely as Cohen stated when he pled guilty and goes to the heart of the question of Trump’s intent, namely, did he know and intend that these hush money payments would benefit his campaign for president?
So, can President Trump be charged by the SDNY with a crime of violating the federal campaign finance laws? Probably not. First, even assuming that the quality of the evidence is to the level that prosecutors demand, it is currently DOJ policy not to indict a sitting president, and SDNY, fiercely independent as it is, is still part of DOJ.
If the feds have evidence of criminality but do not believe they can indict, then what becomes of the information?
If the SDNY charges other people or entities involved in the campaign finance scheme, Trump’s involvement as an unindicted co-conspirator could be laid out in those documents for the public to see. Short of that, it will be challenging for the SDNY to share its evidence and information with other authorities. Rule 6e of the Federal Rules of Criminal Procedure strictly governs disclosure of grand jury materials. We do not know how much, if any, of the SDNY’s evidence falls into this category. Even if it does, there is precedent in an opinion by Judge John Sirica in the Watergate case from 1974 that the SDNY grand jury could provide evidence to Congress in the form of a report. A third option is that the SDNY could share the evidence it has, pursuant to a court order, with a state prosecuting authority, such as the New York Attorney General’s Office which is not necessarily limited in its ability to charge a sitting president, assuming there are parallel state crimes.
Further complicating matters is the DOJ’s new boss, who has taken the view that special counsel Robert Mueller’s investigation of Trump’s finances would cross a “red line.” In 2017, Whitaker wrote an opinion piece for CNN that if Mueller’s office “were to continue to investigate the financial relationships without a broadened scope in his appointment, then this would raise serious concerns that the special counsel's investigation was a mere witch hunt.” Will the fact that this investigation is now in the hands of the SDNY and not Mueller change that conclusion for Whitaker? It should.
But, given Whitaker’s unusually partisan past and his statements hostile to any criminal investigation of Trump, the American public and Congress need to ensure that any evidence that the SDNY possesses of Trump’s participation in an illegal campaign finance scheme to help get him elected does not get buried by political forces looking to protect him.