The combination of prosecutorial guile and sheer chance made it happen, that gripping, breathless, split-screen hour on Tuesday—reality TV elevated to the level of constitutional drama—was a historic turning point. The president’s personal lawyer, Michael Cohen, and his campaign chairman, Paul Manafort, stand as convicted federal felons. The president himself—“Individual-1” in Cohen’s plea agreement—is an unindicted co-conspirator in two felony violations
- Last week was one of the most dramatic of President Donald Trump’s tenure so far.
- Trump’s former longtime lawyer Michael Cohen and ex-campaign manager Paul Manafort were convicted of federal crimes.
- Now all eyes are on what happens next.
ALLAN SMITH//Last week featured some of the biggest drama of President Donald Trump’s tenure so far.
In courtrooms separated by roughly 200 miles, Trump’s former longtime lawyer Michael Cohen pleaded guilty to eight counts of federal felonies, two of which were campaign-finance violations that he said Trump “directed” him to make, while the president’s ex-campaign manager Paul Manafort was convicted on eight felony counts while the jury was hung on another 10 counts he faced.
What’s next for Michael Cohen?
In cutting a deal with federal prosecutors, Cohen pleaded guilty on Tuesday to five counts of tax evasion, one count of making a false statement to a financial institution, and two counts related to campaign-finance violations. Cohen said under oath that Trump directed him to make the payments in order to boost his candidacy.
The latter two charges were in connection to payments to the former Playboy model Karen McDougal and the porn actress Stormy Daniels to silence their allegations of affairs with Trump.
Altogether, Cohen faced 65 years in prison for the crimes he pleaded guilty to, but the agreement makes it likely he faces a sentence between three and five years instead. Cohen could shorten that further by cooperating with the government’s ongoing investigations.
Cohen’s plea agreement itself isn’t a “cooperation” agreement, which would require him to work with federal investigators. And there is no guarantee that any cooperation would cut his sentence further, though it could improve his chances.
Already, Cohen’s attorney Lanny Davis has said that Cohen wants to provide information of value to special counsel Robert Mueller, who is investigating Russian interference in the 2016 presidential election, in addition to testifying before Congress.
And he said Cohen would not accept a presidential pardon.
“Michael Cohen knows information that would be of interest to the special counsel regarding both knowledge about a conspiracy to corrupt American democracy by the Russians and the failure to report that knowledge to the FBI,” Davis told MSNBC this week.
Cohen has now been subpoenaed in a separate investigation — the New York state probe into the Donald J. Trump Foundation — following his guilty plea in federal court. He could become a key witness in that investigation.
Preliminarily, Cohen’s sentencing date in the Southern District of New York is set for December 12.
Mitchell Epner, an attorney at Rottenberg Lipman Rich who was formerly a federal prosecutor in the District of New Jersey, told Business Insider in an email that if that December 12 date holds up, “it seems very unlikely to me that Michael Cohen is actually being used as a cooperator — either by the SDNY or Special Counsel Mueller’s office.”
“If, on the other hand, the December 12 sentencing hearing is delayed, that would strongly point to (but not be definitive) cooperation,” he added, noting that he was surprised that the plea agreement was a non-cooperating deal.
Epner said that Cohen’s agreeing to a three-to-five-year sentence was surprising as well, saying that was a “significant amount of time” for him to agree to serve.
“It leads me to believe that he is still actively pursuing cooperation,” he said.
Roland Riopelle, a partner at Sercarz & Riopelle who was formerly a federal prosecutor in the Southern District of New York, told Business Insider in an email that he doesn’t think it looks likely that Cohen will be able to cooperate with investigators.
“Cohen seems likely to suffer a jail sentence, because he is a fairly unsavory and unsympathetic person,” he said, adding that there is “an outside chance that Cohen might still cooperate with the Southern District and Mueller, and he and his lawyer keep signaling that is what they want.”
What about Trump?
With Cohen having said that Trump “directed” him to arrange for the Daniels and McDougal payments, which were the basis of two of the eight counts Cohen pleaded guilty to, experts called Trump an “unindicted co-conspirator” as it related to Cohen’s plea deal.
Typically, that would open Trump up to being indicted. But Trump is no ordinary person. Being president makes things quite a bit different.
The Department of Justice’s Office of Legal Counsel guidelines stipulate that a sitting president cannot be indicted, and Trump’s attorneys have highlighted this on a number of occassions. Those attorneys have also stated that Mueller plans to stick to those guidelines. Mueller’s office has not independently confirmed that, The Associated Press noted.
There are no guidelines saying an ex-president cannot be charged, and the matter itself has never been tested in court and had its constitutionality determined. Additionally, the US Attorney’s Office for the Southern District of New York has not hinted whether it would follow this guideline, although it appeared clear after Cohen’s court date on Tuesday that they were not pursuing such charges in the immediate future.
Sol Wisenberg, who conducted grand jury questioning of former President Bill Clinton during the Whitewater scandal, told the AP that Cohen’s deal was “obviously” bad for Trump, but he assumed Trump won’t “be indicted because he’s a sitting president.”
“But it leads him closer to ultimate impeachment proceedings, particularly if the Democrats take back the House,” he said.
That is the most immediate avenue of concern for Trump.
Philip Allen Lacovara, who served as counsel to the special prosecutors investigating former President Richard Nixon’s role in the Watergate scandal, told The New York Times that federal prosecutors in the Southern District of New York “could seek permission from the deputy attorney general to do what we did in Watergate, which was to prepare a ‘road map’ of evidence bearing on the president’s culpability and send it to the House Judiciary Committee, which has jurisdiction over impeachment.”
The likelihood of impeachment
Having a Congress open to such an idea is dependent on the results of the midterm elections.
Trump himself has opined on that possibility, telling Fox News that he doesn’t “know how you can impeach somebody who’s done a great job.”
Democrats, on the other hand, have been leery of discussing impeachment.
Democratic House and Senate aides who spoke with Business Insider and requested anonymity to speak candidly on the subject said any discussion of impeachment is still far off, even after the Cohen and Manafort convictions. Instead, they pointed to what they said were the “shorter-term impacts,” such as the House or Senate Judiciary Committees holding hearings and using the convictions as further rationale to delay a confirmation hearing for Judge Brett Kavanaugh, Trump’s Supreme Court nominee.
One Democratic Senate aide said Cohen’s plea deal and Manafort’s guilty verdict don’t change any calculations for the time being, but do set the stage for possible actions after Mueller’s report is released.
“There’s nothing the White House and Republican strategists want more than for the midterms to become a referendum on impeachment,” they said.
Polling shows that the opinion on impeachment is fairly split. A Politico/Morning Consult survey last week found that 42% of voters believe Congress should begin impeachment proceedings against Trump while another 42% say it should not.
What’s next for the Trump Organization?
Another avenue to open up following Cohen’s plea deal is involving the Trump Organization.
In an information filed by prosecutors on Tuesday, they laid out how executives at Trump’s business helped reimburse Cohen for “election-related expenses.” The court filing says Cohen submitted an invoice in January 2017 requesting $180,000, which included $130,000 for the payment he facilitated to Daniels and $50,000 for “tech services.”
The Trump Organization officials listed in the filings inflated that total to $420,000, prosecutors said, which would be paid to Cohen in installments of $35,000 for a monthly retainer fee throughout 2017. They called the monthly invoices “legal expenses,” according to the filing.
Though the two executives mentioned were not named, many experts and observers pointed to Trump Organization CFO Allen Weisselberg as most likely one of the two.
Soon after, it was revealed that Weisselberg, the man who for years managed Trump’s books, was granted immunity by Manhattan federal prosecutors in exchange for information about Cohen. Reporting made it clear the information was limited to the Cohen investigation, and not connected to wider-ranging scrutiny of the president’s or his business’s finances.
On Thursday night, meanwhile, The New York Times reported that the Manhattan District Attorney’s Office, unconnected to the federal prosecutors investigating the payments, was weighing possible criminal charges against the Trump Organization and those two unnamed senior officials. It’s unclear whether Weisselberg’s immunity would apply to the state-level investigation.
What about Paul Manafort?
In the immediate aftermath of Manafort’s guilty verdict, it became clear that the president had at least been considering pardoning his former campaign chief.
Rudy Giuliani, Trump’s personal attorney, said he advised the president against considering granting such a pardon until at least after Mueller’s probe concluded. The president had reportedly consulted with others about whether to pardon Manafort before he was convicted in federal court.
Manafort was convicted on eight counts related to various financial crimes that were not tied to his work on the campaign. The former Trump campaign manager has a second trial upcoming in Washington, DC.
Trump ramps up battle with his own attorney general
In the aftermath of the Cohen and Manafort convictions, Trump ramped up his criticism of Attorney General Jeff Sessions, who offered a rare rebuke to the president’s remarks.
During a “Fox and Friends” interview, Trump said he only gave Sessions the job because he believed Sessions would be loyal, adding that he felt Sessions “never took control” of the Department of Justice.
Sessions responded, saying he took control of the department as soon as he assumed control of it and that his office would not be “improperly influenced by political considerations.”
In Congress, multiple leading Republicans signaled that Sessions would likely be replaced following the midterm elections. That could be a defining decision of Trump’s young presidency.