Cohen, Manafort, and Trump? What do we know and what happens next?

So where are we as a result of the Paul Manafort conviction and Michael Cohen plea? Here are some possible answers.

How bad for Trump was the Michael Cohen plea and the Paul Manafort conviction?

Legally Paul Manafort really had nothing to do with Trump in terms of his campaign and allegations of Russian interference with US elections and allegations that Trump, his campaign, or staff aided and abetted or obstructed the investigation.  This was a trial involving Manafort’s private business dealings. 

It needs to be made absolutely clear that this trial was not about any alleged Russian connections between Trump, his campaign, or associates.  The trial neither refutes nor confirms any of this and has nothing to do with those contentions.  However, the Manafort conviction is a victory for the special prosecutor who uncovered this illegal activity during his investigation.  It supports the idea that the special prosecutor has reason to believe that a criminal investigation is warranted.  It is possible, but we do not know, that Manafort might appeal or even agree to plea to the remaining charges, or negotiate to cooperate with a sentence reduction in return for cooperation with the special prosecutor.  As Trump’s former campaign manager his may have important and relevant information.  We do not know.

Is all this a witch hunt?

Manafort is about issues unrelated to the Russian probe.  Does this not prove a witch hunt?  No.  First prosecutors all the time begin investigations into one matter and turn up illegal behavior unrelated to the initial investigation.  They do not and are supposed to turn a blind eye to these new allegations of illegal behavior and instead often prosecute, as is the case here.

Second, think of a parallel.  Kenneth Starr was the special prosecutor originally appointed to investigate alleged illegal behavior involving President Clinton when he was still governor of Arkansas.  This was the investigation into land dealings called Whitewater.  His investigation revealed no improper behavior there but did find in the course of his investigation that Clinton lied under oath about sexual relations with Monica Lewinsky.  This became the basis of the impeachment against him.  Thus, the Manafort investigation/conviction is a similar outgrowth of Muller’s investigation in the way the Starr perjury claims were regarding Whitewater.

How serious is Cohen?

Cohen is a different legal matter.  Again this has nothing to do with the Russian investigation, per se.  However on a scale of 1-10 where 10 is Trump is impeached or convicted of a crime, and a 9 is Trump is indicted, this was an 8.  Cohen’s plea directly implicates the president in election-related charges which constitute a felony.  His plea also adds saliency and support to civil law suits brought by Stormy Daniels and Karen McDougal. But more importantly, Cohen as part of an agreement to reduce his sentence may provide other critical information that connects Trump to other possibly illegal activities.  We do not know what Cohen knows but it appears to be a lot.  The Judge who reviewed the attorney-client confidential information of Cohen’s involving the president is allowing a lot of it to be used, suggesting potentially a significant amount of incriminating information.


The Political Damage?

Collectively, the Cohen-Manafort plea and conviction takes enormous wind out of the claim by Trump that all this is a big witch hunt.  We now have proven assertions or illegal activity involving Trump and his associates, lending credence to claims that Trump or his associates had broken the law.  Politically, Tuesday was a major turning point in the sense that it makes it harder to say there is no merit to any illegal actions surrounding Trump or his associates.  Again, none of this touches the core issue of the Russian investigation; this is all periphery to it.

It is unlikely any of this changes the mind of core Trump supporters.  Its bigger impact is on swing voters, and also in terms of legitimizing the special prosecutor’s probe.

What can Trump do to shut down the legal problems?

Yes Trump can still fire Mueller but this close to an election I doubt even he risks that.  It would explode in his face.  The Muller investigation is probably within a month or so of concluding its fact-finding stage.  At that point a report will be released detailing what he knows and what steps will follow.   What it concludes about Trump no one knows and whether more indictments follow is a good question.

Can Trump be indicted?  Good question.  Watergate-era Justice Department memos suggest no but  a lot of law has changed since then to question that.  If he is indicted there is a major legal battle that goes to the Supreme Court.  I suspect Mueller, even if he concludes there is probable cause of presidential illegal behavior (direct primary liability or aiding and abetting), will opt not to indict and list the president as in Watergate as an unindicted co-conspirator.  This is a nightmare for Trump.  He cannot really clear his name here with a legal proceeding and if the Democrats take control of the House, this is the basis for impeachment.  Instead, I see Mueller potentially indicting many Trump associates, but I do not know since his report has not yet been finalized and released.

Trump can pardon Cohen, Manafort, and anyone else charged or convicted of federal crimes.  Trump cannot easily fire the US prosecutors in New York–they are careerists with a lot of legal protections on their side.

Trump cannot shut down the Daniels and McDougal law suits.  They are civil matters under state law and presidential pardons do not reach into state suits.  Plus, Clinton v. Jones established the legal ruling that sitting presidents can face civil law suits while in office.

Giuliani’s admission about paying hush money to Stormy Daniels strengthens special prosecutor’s obstruction of justice claims and why presidential pardons may make problems worse for Trump

Note:  This is a press release I am sending out today.

The obstruction of justice and other potential criminal charges against Donald Trump were
strengthened by Giuliani’s admission about paying hush money to Stormy Daniels, and the use of presidential pardons may make problems worse for the president.

SAINT PAUL, MN (PRWEB) May 3, 2018 -- Hamline University professor David Schultz, noted expert on constitutional law and legal ethics, argued today that obstruction of justice and other potential criminal charges against President Donald Trump were strengthened by Giuliani’s admission about paying hush money to Stormy Daniels.  He also argued that presidential pardons to shut down the investigations may constitute new evidence of obstruction of justice.

According to Schultz: “Giuliani’s admission closes an important circle, connects critical dots, and portends far more serious problems for Trump than simply a violation of campaign finance laws.  Trump always had plausible denial that his attorney Michael Cohen had gone rogue when he made payments to stormy Daniels to silence her, even though the general presumption is that lawyers act as agents for their clients.   Acting alone,  one could argue that Cohen’s payments were independent expenditures meant to influence the presidential campaign and therefore should have been  reported, as required by federal campaign finance law. Giuliani’s statement clearly ties Cohen, to Trump and Daniels and it now raises questions about possible illegal activity of Trump or the Trump campaign regarding the 2016 election.  Even more powerfully, for a president who claimed he has done nothing wrong, this connection impeaches Trump’s credibility, raising questions about his motives regarding other criminal allegations he is facing, as well as whether he took other action to obstruct justice.”

Schultz, author of more than 35 books and 150 articles on various aspects of American law and politics, including his most recent two volume Constitutional Law in Contemporary America, (West Academic), said on Thursday that critical to establishing obstruction of justice under federal law is showing a corrupt intent meant to impede a criminal investigation.  The acknowledgment of the Stormy Daniels payment provides evidence of an intent to hide or obstruct information, leaving open interesting questions regarding whether he has undertaken other actions with the intent of concealing information or obstructing the legal.

Additionally Schultz, who teaches government ethics and criminal law, also said: “If Trump thinks that issuing pardons to his attorney Michael Cohen or other will stop the criminal inquiry, he is wrong.  First, while presidents may issue pardons, if the purpose of the pardon is to impede a criminal investigation, that pardon may be evidence of obstruction of justice.  Second, the use of a pardon will remove the ability of individuals to assert their Fifth Amendment right to remain silent, thereby making it more probable that people such as his attorney would potentially have to provide against evidence against the president.  Any pardons at this point by the president are suspect and potentially more damaging to the president than even Giuliani’s statements.

Schultz is a professor of political science at Hamline University. He has taught classes on American government and election law for more than 25 years. A  three time Fulbright scholar and winner of the Leslie A. Whittington national award for excellence in public affairs teaching,   David Schultz is the author and editor of 35 books and 150 articles on American politics and law and is a frequently quoted political analyst in the local, national, and international media.

--End–

The State of the Trump Presidency Today

Note:  On Saturday I travel to Lithuania and Belarus for two weeks to teach.  But before I go some thought on what happened with Trump this week.

Every week seems portentous when it comes to the Trump administration.  This week was no exception.  What can we make of the events this week in terms of what they mean for the 2018 elections and the future of the Trump presidency?


McMaster Out–What does it mean?
Tillerson out, Pompeo in.  McMaster out, Bolton in.  Sanctions on China.  Congratulate Putin.  Is Kelly next?  Is there an ideology guiding Trump’s recent moves with foreign policy?  At its best it signals a shift to right in terms of US foreign policy.  More specifically, it is a stronger push toward economic nationalism and unilateral policy than was the case under Tillerson and McMaster.  It also bodes for a more confrontational policy, where Bolton is critical of the Iran deal and Pompeo pushing a more aggressive stance against Korea.  In replacing his generals (who were cautious in terms of he use of hard power or military force), Trump ironically may be replacing them with civilians who are more militaristic and likely to use force to pursue US foreign policy objectives.  In short, the new Trump foreign policy is economic sanctions and force and less diplomacy.

However, we may be giving Trump too much credit here.  Trump has largely ignored the foreign policy establishment in the US and his recent moves suggest that he is prepared to act on his gut instincts, and not from anything approaching a grant strategy.  The recent moves are more likely gut reactions by Trump that perpetuate the lack of direction in his presidency that will further weaken the ability of the US to articulate its foreign policy objectives.  Don’t expect these to be the last staff replacements.


Cambridge Analytica and what it means
How will this scandal affect Donald Trump and the prospects for his participation in the presidential election-2020? How dangerous is this incident for Trump's political career?  The bigger issue is how will this scandal add to the others in terms of affecting the 2018 midterm elections.  In and of itself much of the public is either not following or understands this issue but it is part of a ongoing story about a lot of dirty things that happened in 2016.  If Democrats take control of one or both houses of Congress the Analytica incident will have helped contribute to that.  Trump’s 2020 prospects hinge more on what happens in 2018.  Moreover, the alleged  Stormy Daniels story (payment of hush money to her) and to other women along with a pending sexual harassment suit or suits will have a broader impact on how many think about Trump.

How should one assess the role of Cambridge Analytica in the victory of Donald Trump in the presidential election-2016?  The 2016 election was one dominated by the social media and fake news.  If all the Cambridge allegations are true (and more details come out), one cannot say that their role was decisive but we can say that it had a significant impact.  One cannot discount other factors such as Clinton’s own candidacy problems and strategy as contributing factors.

Stormy Daniels: Sex, Lies, and the Presidency
In 2017 I argued that 2018 would be the year that law suits would grind the Trump presidency to a halt.  There are the existing and future indictments by the special prosecutor surrounding Russian involvement in the US elections (and Trump complicity and cover up or obstruction of justice) that will include trials this year and legal issues tht will reach beyond the 2018 midterm elections.  Unlike with Nixon when a grand jury was unsure a president could be indicted for a crime and labeled him an unindicted co-conspirator, the law and legal consensus has shifted since then.  Presidents can be indicted for crimes and Trump and his old and new legal team are worried that is a possibility here and that is why Trump is lawyering up now.

Interest groups, states, and cities will challenge many of Trump’s executive orders and administrative regulations.  And of course, sex scandals will add a third set of law suits.   Including Stormy Daniels, there are three women with credible claims of sexual harassment or cover up involving Trump.  Gloria Allred is representing one of these women (Summer Zervos) who just received permission by a judge to proceed with her case.  Look to see her seek to depose Trump in the civil suit (Trump can thank Bill Clinton and the Supreme Court in Clinton v. Jones where the Court said that civil suits can proceed against a sitting president) and also look to see more lawsuits brought by other alleged victims this year.

Talk is cheap.  Let’s see who has video tape of Trump doing what.  If such tapes exist they could have a real impact on Trump.

Conclusion:  When will the Republicans Abandon Him?
Not until such time as they conclude that he is an anchor to the party.  So far his GOP base of 35-40% are with him.  The GOP in Congress is with him...sort of.  They are in denial regarding the potential damage he can do to them in the 2018 elections.  The best thing the GOP has going for them is that the Democrats need a perfect storm to take back one or two houses of Congress.  It is possible but not guaranteed.  If the GOP goes down in 2018 then they will turn on him.  Until if and then, Trump is more popular than the Republicans in Congress and the latter cannot afford to turn on him.

Sex, Lies, and Trump Videotape–The Ethical and Legal Problems of the Trump-Daniels Contract

Donald Trump’s attorney Michael Cohen has major ethical and legal problems, potentially meriting

disbarment and prosecution for crimes.  In addition, in light of Ms. Daniels’ lawsuit challenging the enforceability of the agreement, was this contract even valid?
I have taught legal ethics in law school for nearly 15 years.  As I tell my students, attorneys are expected to conform to the law.  They also must follow ethical rules as lawyers, mandated by the states where they practice.  These rules generally follow the American Bar Association’s Model Rules of Professional Conduct (MRPC).  Failure to follow them invites disciplinary action, including in New York where Cohen is licensed.
In the circumstances surrounding his paying Stormy Daniels hush money out of his own pocket to silence her about her alleged affair with Donald Trump during the 2016 presidential election, Cohen may have broken several laws and ethical rules.  First, Cohen seems to be admitting that he did make this payment.  If this admission is being made without the express or implied authorization of Trump, Cohen has violated MRPC 1.6.  Specifically, if Cohen is revealing information protected by attorney-client confidentiality without permission this is the first ethical problem.
Second, in paying money to Stephanie Clifford (Stormy Daniels), he is violating MRPC Rule 1.8 (e) that bars an attorney from providing “financial assistance to a client in connect with  pending or contemplated litigation.”  While it is not clear if there would have been litigation surrounding the possibility of Ms. Daniels disclosing the affair, suits for defamation of character or a contract not to disclose the affair could have been possible and therefore paying her to settle would have been a potential violation of 1.8 (e). Moreover, if Cohen badged Daniels into this settlement, that is a violation of Rule 3.4, fairness to opposing party.
In addition, Rule 1.8 (d) prohibit an attorney prior to conclusion of representation of a client from negotiating an agreement to get media or literary rights to issues relating to the representation.  The basis for this rule is to prevent attorneys from compromising their zealous advocacy for a client and perhaps altering their legal strategy or advice in the hope that a different outcome would make for a more profitable story.  This is an issue of conflict of interest.  Cohen is reportedly shopping a book about Trump, potentially including the telling of the story of the latter’s relationship with Ms. Daniels.  Not only might the book include information protected by attorney-client information, but it is possible that the representation with Trump is not done and that he violated this rule.  Even if the representation is done, if Cohen paid off Ms. Daniels or did anything in representation of Trump with the idea that he might be able to personally profit, that is a conflict of interest that violates Rule 1.8.   
It is also possible he violated Rule 1.1–competence–in not providing appropriate advice or representation to Trump and also perhaps committed malpractice in acting in a way that under-minded a duty to his client.  In fact one can also argue that if the payment was made to Ms. Daniels without Trump’s knowledge or consent, Cohen violated Rule 1.2, acting beyond his scope of representation for his client, and Rule 1.4, failure to communicate with his client and keep him informed about the status of a matter.
Another problem for Cohen is that if he made an expenditure of $130,000 to Ms. Daniels with the purpose of silencing her so as to prevent her disclosure from affecting the 2016 election, this might violate federal law.  This is an argument that Common Cause is making.   Federal election law would require expenditures such as this to be reported.  If Cohen then tried to hide this payment by working with Trump or others, it might constitute aiding and abetting or conspiracy to obstruct justice, both of which are violations of federal law.  Breaking the law is also a violation of Rule 8.4, in that such acts are either prejudicial to the administration of justice or that speak to the honesty or trustworthiness of an attorney.
Aside from raising the questions about the ethical and legal behavior of Trump’s attorney,  was this contract even valid without Trump’s signature.  On the one hand yes–this is the argument  based on detrimental reliance.  Did all the parties act in a way that they assumed there was a contract?  Yes, all parties did it seems act that way and it really is not required to have the agreement signed.  Many oral agreements are enforceable and since this was not a contract for goods the statute of frauds does not apply and no written agreement is needed.
However, I am still questioning whether there was a contract from the start that is enforceable.    By that, if the contract was made where money was exchanged for the purposes of silencing Ms. Daniels, that very contract may be illegal and void.  How so?  The exchange of money to silence her was done so with the intent of affecting the 2016 election.  Moreover, that silencing  includes, as alleged in Ms. Daniels’ suit, preventing her from releasing some materials (videotape?) about the affair. If that is the case and it was not reported as a campaign expenditure, this is a contract for an illegal purpose.  Conversely, if Ms. Daniels  was  paid money to remain silent about her sexual relationship with Trump, this may be a form of bribery meant to influence individuals to vote in a specific way, or to vote at all.  The quid is silence about the sexual relationship, the money is the quo, and the purpose is to affect voters.  Trump and his attorney bribed Ms. Daniels to remain silent about a sexual relationship in other to affect voting.  It is awkward, but a possible bribery case can be made here.
Finally, remember agency law.  Except in rare cases, we attribute the actions of lawyers to their clients.  Trump may be estopped from arguing that he did not know that his lawyer was doing all this unless he can show there was neither explicit not implicit authority from him for his attorney to bribe Ms. Daniels.
Overall, Cohen appears to have committed a lot of ethical and legal mistakes and it will be interesting to see what disciplinary action he faces and which actions of his cn be attributed back to  Trump.