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Michael Cohen testimony implicates Trump as co-conspirator, but next steps unclear



Donald Trump
Donald Trump.
Platt/Getty Images

  • Under most circumstances, President Donald Trump could
    soon face charges from federal prosecutors stemming from his
    former longtime lawyer Michael Cohen’s plea deal.
  • But because he’s president, that’s incredibly unlikely
    to happen, legal experts say.

President Donald Trump’s former longtime lawyer Michael Cohen’s
Tuesday testimony under oath in federal court implicated his old
boss as an unindicted co-conspirator to a crime.

Under most circumstances, prosecutors would soon seek to file
charges against Trump. But Trump is no ordinary subject.

On Tuesday, Cohen, a man who worked
 the president for more than a decade,
admitted in federal court that Trump directed him to knowingly
break the law to boost his own candidacy. Cohen was charged with
eight counts, including two related to campaign-finance
violations. Those counts, he said, involved Trump, as Cohen
 he committed the campaign-finance violations “at
the direction of the candidate” and with the “purpose of
influencing the election.”

Cohen said that at Trump’s direction, he moved to keep both
former Playboy model Karen McDougal and porn star Stormy Daniels
from publicly disclosing damaging information that would hurt
Trump’s campaign. Both women allege affairs with Trump years ago.

Prosecutors wrote that they
could back up Cohen’s admissions through evidence obtained from
the FBI’s April raids on Cohen’s home, office, and hotel room.
The evidence, they wrote, included documents, electronic
devices, audio recordings made by Cohen, text messages, messages
sent on encrypted apps, phone records, and emails.

“Directing” Cohen to commit such a crime would make Trump a
co-conspirator, legal experts say.

Mitchell Epner, an attorney at Rottenberg Lipman Rich who
was previously an assistant US attorney for the District of New
Jersey, told Business Insider in an email that “at a
minimum,” Trump could be charged with “conspiracy to commit the
two campaign finance counts.”

The section of US code dealing
with conspiracy states that if “
two or more persons
conspire either to commit any offense against the United States,
or to defraud the United States, or any agency thereof in any
manner or for any purpose, and one or more of such persons do any
act to effect the object of the conspiracy, each shall be fined
under this title or imprisoned not more than five years, or
both,” should the crime committed be a felony.

“The plea, under oath, establishes that the president was a
co-conspirator in the campaign violations to which Cohen pleaded
guilty,” 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.

Prior to resigning from office, a grand jury named Nixon an
“unindicted co-conspirator.” Lacovara said that is now what Trump
“technically” is.

But it appears highly unlikely Trump will be indicted in this
instance — at least while he is in office.

‘Were he not president, Donald Trump himself would almost
certainly be facing charges’

michael cohen

Craig Ruttle/Associated

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 special counsel
Robert Mueller, investigating Russian interference in the 2016
election, 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
 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.

“The President of the United States is now, formally, implicated
in a criminal conspiracy to mislead the American public in order
to influence an election,” The New Yorker’s Adam Davidson
wrote. “Were he not President, Donald Trump himself would almost
certainly be facing charges.”

Sol Wisenberg, who conducted grand jury questioning of former
President Bill Clinton during Whitewater, told the Associated
Press that Cohen’s deal was “obviously” bad for Trump, but he
assumed Trump won’t “be indicted because he’s a sitting

“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. 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,” Lacovara
told The Times.

Trump himself has opined on this possibility in
recent days, telling Fox News in an interview that he doesn’t
“know how you can impeach somebody who’s done a great job.”

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