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NY Times Op-Ed, Dec. 7, 2018
Is This the Beginning of the End for Trump?
By Barry Berke, Noah Bookbinder and Norman Eisen
On Friday, federal prosecutors in Manhattan and the special counsel,
Robert Mueller, delivered a potentially devastating one-two punch
against President Trump. Coming late in the day, they made for bracing
end-of-the-week reading.
Calling on the court to impose a sentence of substantial imprisonment
against Michael Cohen, the president’s former personal attorney,
prosecutors in the Southern District of New York stated that Mr. Trump,
the Trump Organization and the campaign were all directly involved in an
illegal scheme to silence two women who claimed they had affairs with
Mr. Trump. Prosecutors wrote that payments made by Mr. Cohen and other
actions were taken “with the intent to influence the 2016 presidential
election” and pursued “in coordination with and at the direction of
Individual 1” — that is, Mr. Trump.
The Trump Organization’s reimbursements to Mr. Cohen for payments were
fraudulently disguised as legal fees — and, according to the memo, were
approved by senior executives at the organization. The New York
prosecutors also disclosed that they are investigating additional
unspecified matters involving Mr. Cohen and, presumably, the Trump
Organization. In light of these disclosures, the likelihood that the
company and the Trump campaign face charges is now high.
Although President Trump may avoid a similar fate because the Justice
Department is unlikely to indict a sitting president, he could be named
as an unindicted co-conspirator, as was President Richard Nixon, or
charged if he leaves office before the statute of limitations runs out
(most likely in 2022).
In crediting Mr. Cohen with providing “substantial and significant
efforts” to assist the investigation, Mr. Mueller’s separate sentencing
memo details new evidence of collusion with Russia, including a
previously unreported phone conversation in November 2015 between Mr.
Cohen and an unnamed Russian who claimed to be a “trusted person” in
Moscow. The Russian explained to Mr. Cohen how the Russian government
could provide the Trump campaign with “political synergy” and “synergy
on a government level,” and offered to set up a meeting between Mr.
Trump, then a candidate for the Republican presidential nomination, and
President Vladimir Putin of Russia.
This newly disclosed conversation directly speaks to the question of
collusion — the outreach was explicitly political and was focused on how
each side would gain from a potential partnership.
Mr. Mueller also notes that Mr. Cohen provided his team with additional
information relevant to the “core” of the special counsel investigation.
The special counsel focuses on Mr. Cohen’s contacts with people
connected to the White House in 2017 and 2018, possibly further
implicating the president and others in his orbit in conspiracy to
obstruct justice or to suborn perjury. Mr. Mueller specifically mentions
that Mr. Cohen provided invaluable insight into the “preparing and
circulating” of his testimony to Congress — and if others, including the
president, knew about the false testimony or encouraged it in any way,
they would be at substantial legal risk.
Mr. Trump’s legal woes do not end there. The special counsel also
advanced the president’s potential exposure under the Foreign Corrupt
Practices Act for activities relating to a potential Trump Tower Moscow.
Mr. Mueller noted that the Moscow project was a lucrative business
opportunity that actively sought Russian government approval, and that
the unnamed Russian told Mr. Cohen that there was “no bigger warranty in
any project than the consent” of Mr. Putin.
If recent reports that Mr. Cohen floated the idea of giving Mr. Putin a
$50 million luxury apartment in a future Trump Tower Moscow prove true,
both the president and his company could face substantial jeopardy.
In a second blow to the president, on Friday prosecutors also disclosed
a list of false statements that Paul Manafort, his former campaign
chairman, allegedly made to federal investigators in breach of the
cooperation agreement he entered into following his conviction for
financial fraud and subsequent guilty plea to criminal conspiracy.
Some of the lies that the special counsel spells out in the redacted
memorandum appear to implicate the president and those close to him in
possible collusion and obstruction crimes. Notably, Mr. Manafort is
accused of lying to the special counsel regarding his contacts with the
Trump administration.
We don’t know the content of those contacts, but considering public
statements about potential pardons, it is not hard to imagine they could
implicate the president and others in a conspiracy to obstruct justice
or witness tampering if, for example, they suggested a potential pardon
if Mr. Manafort protected the president.
Contrary to the president’s claim that all of this “totally clears” him,
the danger to Mr. Trump, his business and his campaign has compounded
significantly. For all these reasons, the president is unlikely to have
a restful, tweet-free weekend — or a calm 2019, for that matter.
Barry Berke is co-chairman of the litigation department at Kramer Levin
Naftalis & Frankel, where he is a partner specializing in white-collar
criminal defense. Noah Bookbinder is executive director of Citizens for
Responsibility and Ethics in Washington and a former federal corruption
prosecutor. Norman Eisen is a senior fellow at the Brookings
Institution, chairman of Citizens for Responsibility and Ethics in
Washington, and author of “The Last Palace: Europe’s Turbulent Century
in Five Lives and One Legendary House.”
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