On August 21, Michael Cohen, President Trump’s former personal attorney, pled guilty to charges of tax evasion and banking fraud––and in an tremor that rocked the political landscape, confessed to criminal violations of campaign finance laws. Cohen’s admissions are so explosive because he’s alleging that, rather than acting on his own, he paid of hundreds of thousands of dollars in hush money that were in reality illegal, secret campaign contributions, at the explicit direction of his then-client, Republican presidential candidate Donald J. Trump.
In recent days, Cohen’s plea has prompted charges from Cohen’s attorney, Lanny Davis, that there’s “no doubt President Trump committed a crime.” Congressional Democrats have branded Trump the equivalent of “an un-indicted co-conspirator,” and Sen. Richard Blumenthal (D-Conn.) has asserted that a criminal indictment of the President “should be on the table.”
But do the facts of the Cohen case actually present strong evidence that Trump committed a crime, as his former personal attorney is reportedly willing to testify? To get a unbiased perspective of how a federal prosecutor would view the evidence so far, Fortune turned to Patrick Collins, a white collar defense attorney at King & Spalding. As Assistant U.S. Attorney in Chicago, Collins served as head of the Public Corruption Section, and successfully prosecuted Illinois’ former Republican Gov. George Ryan.
Collins’ analysis cuts through the fog of politics to assess the available facts through the lens of a seasoned prosecutor. His conclusion is that that the evidence from Cohen plea is far from decisive, and that the facts, don’t meet standard of clear criminal misconduct that, on their own, would justify an indictment or impeachment.
With guidance from Collins, let’s examine four questions to clarify the legal danger Trump faces from the Cohen guilty plea.
What crime could trump be charged with?
The U.S. Attorney’s Office in the Southern District of New York, which brought the Cohen case, states that Cohen pled guilty to violating two separate campaign finance laws. Both breaches arose from hush money payments made to two women who threatened to go public just prior to the election with revelations that they’d had affairs with Trump. In each instance, the U.S. Attorney relies heavily on the Cohen’s characterization of the state-of-mind that motivated his actions. As the U.S. Attorney’s press release and indictment state, “Cohen caused and made the payments… in order to influence the 2016 presidential election.”
First, Cohen orchestrated a complex scheme in which “the company,” obviously a reference to the Trump Organization, paid $150,000 to a “woman-1,” the code name for former Playboy Playmate Karen McDougal. The U.S. Attorney states that since the Federal Election Campaign Act of 1971 bans corporations from making any direct contributions to presidential candidates, and that Cohen admits the money went to bolster Trump’s candidacy, the payment amounts to a criminal violation of federal campaign finance laws.
Second, Cohen made a $130,000 payment from his personal funds to a second woman (“Woman-2” in the indictment, identified from previous reports as pornography actress Stephanie Clifford, better known as Stormy Daniels, threatening to sell her story about an affair with Trump. Federal campaign laws set a $2,700 limit on an individual’s contribution to a presidential campaign; Cohen’s hush money payment therefore violated a second provision of the Federal Election Campaign Act applying to contributions for individuals. Once again, it’s allegedly a crime because Cohen admits that the $130,000 was targeted to shield Trump’s presidential bid from bad publicity, and is therefore a campaign contribution.
According to press reports detailing Cohen’s statements to prosecutors, and Davis’ assertions on TV news shows, Trump knew about the threats and demands for payments at the time they were made. Cohen further asserts that Trump instructed him follow both of the illegal routes––using corporate funds and paying with Cohen’s personal cash––and to keep the payments secret. Most potentially damaging, Cohen alleges that he and Trump shared the same motives: shielding the candidate from a flood of negative stories weeks before the election.
For Collins, the case boils down to the intent of Trump, rather than Cohen, and whether federal campaign laws are as black and white as Cohen’s team is claiming.
Does Trump have a convincing defense?
Collins point out that for Trump to be guilty of a crime, prosecutors would need to prove that he ordered the payments chiefly to influence the election. That’s the crucial link in proving that the hush money actually amounted to campaign contributions.
“Cohen talked about his mental state, and that he was motivated by helping his campaign,” says Collins. “But what was the mental state of the President? Those who suggest a direct link between Cohen’s thinking and that of the President are missing crucial steps. Just because Cohen says that Trump was buying the women’s silence for electoral purposes isn’t in itself proof.”
Indeed, notes Collins, Trump may have acted for reasons not motivated by the election. “He could have been motivated by protecting his wife and children from embarrassment,” he says. He adds that a conversation between Cohen and Trump that Cohen secretly taped, in which they discuss how to channel money to McDougal––though damaging in other ways–-“does not provide proof of Trump’s intent.”
Collins draws from his own experience as a prosecutor on the process of weighing evidence to determine whether or not to bring an indictment. “It’s not a slam dunk to conclude that just because he’s a presidential candidate, that he’s motivated principally by electoral purposes to suppress something as personal as an affair,” he says.
In an August 22 interview on Fox News, Trump appeared to be charting a defense strategy. He stated that he knew nothing about both payments until after they were made. That statement may be plausible in the case of Clifford, but contradicts the secretly-recorded tape, where he talks to Cohen about paying off McDougal. Trump also asserted on Fox that the hush money “came from me” and not from campaign funds. In effect, Trump is arguing that the payments weren’t campaign contributions at all. Trump didn’t say what motivated him to kill what he characterizes “false and extortionist” allegations. But he’s clearly saying he had a motive apart from protecting his campaign.
Aside: Can Trump be indicted while in office?
As Collins points out, the law isn’t clear on the issue. During the 1990s Whitewater probe, independent counsel Kenneth Starr asserted that a sitting president can be indicted while in office. The most influential opinion, however, is contained in 1973 memo from the Department of Justice’s Office of Legal Counsel, reaffirmed in 2000. That opinion holds that indicting a sitting president implies a violation of the Constitution because it could hobble his ability to govern, preventing the the leader of the executive branch from “accomplishing its constitutional duties.”
In the end, Starr decided not to seek an indictment, instead submitting his findings to Congress, effectively deeming that the removal of a president should best proceed through the impeachment process.
Based on today’s evidence, should Trump be indicted or impeached?
Besides speaking to Collins, this reporter sought the views of a former prosecutor with deep experience bringing criminal cases and who is no fan of Donald Trump. We’ll call this revered veteran Top Cop. For Top Cop, any potential case against Trump for criminal campaign law violations seems weak. “It’s really an attenuated way to get him,” he says. “These were really attempts at extortion, where the women were saying, ‘If you don’t pay us, we’ll go public and hurt you.’ They will say things that are embarrassing to your family, so you suppress it. Is that a campaign contribution?”
Collins basically agrees. “To charge a sitting president based on a discrete offense committed before he was president, and relying on the word of Cohen, would be a highly aggressive prosecutorial act,” he says. “For a criminal prosecution of a sitting president, the evidence must be very strong and arguably go the heart of extremely serious misconduct.”
Collins reckons that the recent verdicts may prolong the investigation led by special counsel Robert Mueller. “The combination of the Cohen and Manafort verdicts have bought him some time against critics who believe he should be wrapping up the case,” says Collins. “From what I know about Mueller, he’s a careful, don’t-push-the-envelope prosecutor.”
Still, Collins doesn’t think that Mueller will assert impeachable offenses based on the Cohen evidence as it now stands. “We need to see what Mueller determines from the totality of his investigation and not this referral he made to the Southern District of New York for the Cohen case,” says Collins. “Those charges though politically explosive, will not determine what Mueller will ultimately do as it relates to the President.”
The key issue isn’t that Trump knew about or ordered the hush money payments, but the state of mind that makes them a crime. For Trump, the danger is that proof of a dark, let’s-buy-their-silence-to-protect-my-campaign motive emerges. That revelation could indeed prove crippling to his presidency.
