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Why Trump hasn’t been charged with crimes in the Mueller-Russia probe



Since special counsel Robert Mueller began investigating Russian election interference and the Trump campaign’s alleged collusion, President Donald Trump has vehemently rejected the notion he did anything remotely illegal in relation to the 2016 election.

But federal prosecutors implicated Trump in felony crimes for the first time last week, stating he directed illegal payments to two women with whom he allegedly had affairs in an effort to protect his presidential campaign.

A sentencing memorandum released by prosecutors for the Southern District of New York on Friday said the president’s former personal lawyer Michael Cohen made the illicit payments “in coordination with and at the direction” of Trump.

Read more: Here’s a glimpse at Trump’s decades-long history of business ties to Russia

Cohen had previously implicated Trump in the illegal payments, which represent campaign finance violations because they were intended to influence the election, when he pleaded guilty to eight crimes in August. But Friday’s filing takes things a big step forward, given federal prosecutors endorsed Cohen’s allegations against Trump.

“With respect to both payments, Cohen acted with the intent to influence the 2016 presidential election,” the filing stated. “Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments … And as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual 1.”

The memo added, “As a result of Cohen’s actions, neither woman spoke to the press prior to the election.”

“Individual 1” is Trump, and Friday’s memo puts him in an uncomfortable position as federal prosecutors have now connected him to serious crimes. But there is a difference between being implicated in crimes, and being formally accused of or charged with committing a crime.

Donald Trump at the White House on December 7, 2018.
Mark Wilson/Getty

According to legal experts, perhaps the only reason Trump has not been charged with a crime is the fact he is president. The US Constitution does not say a sitting president cannot be indicted, but it would go against Justice Department policy.

Bradley P. Moss, a Washington, DC-based lawyer specializing in national security, told INSIDER, “Quite possibly the only reason the president has not been indicted (or at least been issued a target letter) by the federal prosecutors [in the Southern District of New York] is because he is the president and the standing [Department of Justice] guidance is that a sitting president can’t be indicted.”

This puts the Justice Department in a “difficult position” given the “statute of limitations to indict [Trump] will have lapsed if he nonetheless wins re-election in 2020 and serves out a full two-term presidency,” Moss explained.

The statute of limitations for campaign finance law is five years from the date of the offense, so in this case that would be around fall 2021 (the payments were made in August and October of 2016).

Accordingly, if the president is ultimately re-elected and the prosecutors believe “a credible prosecution would otherwise be brought” against him, Moss said, the likely result is that they’ll submit a report to the attorney general “who will then have the option to forward that report to Congress for possible impeachment proceedings.”

Moss added there is also the option of a sealed indictment, but said this would be an “illogical move” given many details surrounding the case are already public.

If the Justice Department believes it has a credible case against the president but can’t move forward as a consequence of “institutional policy,” Moss said, then it should refer the matter to Congress to “evaluate whether the circumstances warrant impeachment proceedings.”

“That is how the system was designed to address the very real possibility of a president who has committed high crimes and misdemeanors and to ensure that a president is not ‘above the law,'” Moss said. “It also makes it so that the serious matter of potentially removing a president from office has an aura of political legitimacy to it, in addition to legal legitimacy.”

Similarly, Asha Rangappa, a former FBI special agent and Yale Law lecturer, told INSIDER, “The short answer is that right now it is [Department of Justice] policy not to indict a sitting president.”

Rangappa added, “That is not settled law, however, and so it depends on whether they want to change or depart from that policy in the current circumstances – particularly since, unlike with previous special prosecutors/independent counsels, there is no direct way for [Robert Mueller] to report his findings to Congress or make them public.”

Legally, Mueller is only required to submit his final report to Deputy Attorney General Rod Rosenstein, who is overseeing the investigation. Rosenstein is not obligated to make the report public or submit it to Congress.

There’s also the possibility that Trump makes it to the 2020 election scot-free, but ultimately loses. If this occurs, he would lose the de facto presidential immunity and be far more susceptible to facing charges. His term of office would expire at noon on January 20, 2021, in the event Trump loses on Election Day in 2020.

As Jennifer Taub, a professor at Vermont Law School wrote in a recent op-ed for CNN, “Whether indicted as a direct violator of the Federal Election Campaign Act, aiding and abetting it, or conspiring to violate it, Trump could face a prison sentence … Even if not indicted now, Trump has a big gamble ahead. He can hope he wins in 2020. But if he does not, a criminal trial most likely awaits him on the other side.”

Read more: Federal prosecutors say ‘Cohen deceived the voting public’ and ‘knowingly sought to undermine core institutions of our democracy,’ explaining why he deserves prison time

Trump also has the option of resigning, allowing Vice President Mike Pence to take his place, and hoping for a presidential pardon for all federal crimes, Taub added. But even in this scenario there is no guarantee things would work out in Trump’s favor.

Trump has shifted from denying any knowledge of the payments Cohen made to characterizing them as a “private transaction,” rejecting the notion he did anything illegal. He’s also said his former personal lawyer is a liar who should be given a full sentence.

Prosecutors in the Southern District of New York recommended Cohen receive a prison sentence of three and a half years and pay a $100,000 fine for the crimes to which he’s pleaded guilty, emphasizing his efforts to deceive the voting public.

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