Published by The Lawfare Institute
in Cooperation With
In the history of the American republic, there has never before been a single hour in which, in two separate courts, in cases prosecuted by two separate offices, a president’s former campaign manager and his former lawyer simultaneously joined his former national security adviser as felons—and one of them implicated the president in criminal activity.
Normally, the sort of felonies that Paul Manafort was convicted of Tuesday and to which Michael Cohen pleaded guilty are beyond the scope of what Lawfare covers. Bank fraud and tax evasion are not exactly national security legal issues, and certainly payments to adult film actresses and models in violation of campaign finance law are not the sort of “hard national security choices” that are our bread and butter.
Yet the convictions obtained Tuesday create a remarkable moment, one that interacts inevitably and deeply with major national security investigations—and that places stress on a presidency, and presidential personality, in a fashion that inevitably poses national security concerns.
On Tuesday afternoon, Manafort was found guilty on eight felony counts of tax evasion and bank fraud in the Eastern District of Virginia. The judge declared a mistrial on the remaining 10 counts after the jury deadlocked. Shortly thereafter, in the Southern District of New York, Cohen pleaded guilty to eight felonies of his own: five counts of tax evasion, one count of bank fraud, and two counts of campaign finance violations involving hush-money payments to the actress Stormy Daniels (whose real name is Stephanie Clifford) and to Karen McDougal.
Here are seven questions and some related observations pointed up by Tuesday’s events.
Does Donald Trump choose the “best people”?
We didn’t need a raft of criminal convictions to answer this question. The consistent incompetence of Trump’s inner circle is all the answer one needs. That said, the starting place in this conversation must be the degree to which close associates of the president of the United States keep turning out to be felons. Yes, only one portion of Cohen’s criminal conduct and none of the charges on which Manafort was convicted connect directly to President Trump. But the parade of greed and the continuous criminal conduct on the part of two people closely associated with Trump and his campaign sheds disturbing light on who the president regards as appropriate top aides and associates. That Trump himself continues to express sympathy with Manafort, not outrage at his conduct, further undermines confidence in his judgment of character.
Presidential judgment matters. In a week dominated by headlines about the president’s real and threatened revocation of security clearances of current and former officials who have criticized him, take a moment to consider the individuals the president has favored with trust and confidence, as well as those to whom he has denied it.
Do these convictions have implications for L’Affaire Russe?
They may, and in both cases, there is reason to suspect they do, but we don’t know yet know for certain.
With both defendants, there are reasons to suspect the individual may have important information for Robert Mueller’s investigation. And in both cases, the current moment is one in which cooperation would be extremely well advised. In Cohen’s case, cooperation is almost certainly happening, though the plea agreement contains no cooperation provision.
In neither case, however, is it clear what the defendant knows. That is, assuming either Manafort or Cohen or both decided to cooperate, would either of them have anything important to offer Mueller? And at least in Manafort’s case, there is no particular reason to think that conviction on eight counts by a jury of his peers will concentrate his mind any more than the prospect of conviction did. Whether the verdict will cause Manafort to cooperate in order to avoid another trial and to obtain some sentencing leniency is a substantial open question. Embedded within that question is an even larger one: If Manafort and Cohen do cooperate, does either of them hold the keys to any kingdoms?
On MSNBC on Tuesday evening, Cohen’s lawyer Lanny Davis made his client’s feelings plain: "Mr. Cohen has knowledge on certain subjects that should be of interest to the special counsel and is more than happy to tell the special counsel all that he knows."
But keep in mind that there were high hopes that Trump campaign foreign policy adviser George Papadopoulos would be in a position to offer Mueller substantial cooperation after his plea agreement. That turned out not to be the case.
How big a deal is the Manafort verdict?
It is a big deal first because the failure to obtain it would have been an immense setback to the investigation. Going to trial is always a fraught process. And for the Mueller investigation to have failed to garner a conviction would have risked consequences for the legitimacy of the entire enterprise. A conviction on eight counts and a mistrial on 10 other counts may seem like a split decision—but it is not. The jury found Manafort guilty of substantial criminal conduct, and he faces significant jail time at his sentencing in December. Having the jury hang on some charges and convict on others shows independence and makes it hard to argue that Manafort did not get a fair shake. Mueller’s shop is no doubt satisfied with this outcome.
Tuesday’s verdict is also not the end of the story for Manafort—not even close. He is scheduled to go on trial in Washington, D.C., in September for alleged violations of the Foreign Agents Registration Act and other charges. While the charges in the Virginia trial were not central to the core questions of the Mueller probe—the foreign conspiracy to interfere in the 2016 election—this trial did demonstrate that Manafort was under overwhelming financial stress and deeply indebted to foreign interests at precisely the time he agreed to join the Trump presidential campaign without pay.
What’s more, it is clear that the special counsel’s office believes the Manafort case is important to its mission. The evidence of this is the simple fact that Mueller chose to keep the Manafort prosecution within the office, not to refer it elsewhere. For some reason, Mueller’s team views the tax- and bank-fraud charges against Manafort as connected to the central inquiry, in a way the Michael Cohen case—which it referred to the U.S. Attorney’s Office for the Southern District of New York—is for some reason not. That may be because Mueller’s team wants information it believes Manafort has. And that, in turn, makes his conviction, and the pressure on him that it generates, a significant event.
How big a deal is the Cohen plea agreement?
The president’s former lawyer has not only confessed to criminal campaign finance violations, but he has also said under oath that he was doing so at the direction of the president himself. It’s hard to say yet what precisely this means. But it is not a small thing. Setting aside the question of whether Cohen will cooperate with Mueller, it remains to be seen whether prosecutors will pursue additional criminal charges against individuals mentioned but not charged in the criminal information.
Cohen’s plea agreement does not contemplate any specific cooperation. However, as Lawfare’s David Kris noted, the Federal Rules of Criminal Procedure allow the court to reduce a sentence within one year of sentencing when the government agrees that the defendant has “provided substantial assistance in investigating or prosecuting another person.” That means the question of cooperation, on campaign finance questions or other matters, could remain open possibly even after Cohen’s sentencing. It seems preponderantly likely that Cohen is cooperating—or at least that he will cooperate.
This means that prosecutors in the Southern District of New York have a witness on their hands who was very close to Trump and knows a great deal about a lot of things—some of which he pleaded guilty to Tuesday.
How close is this to the president?
“It doesn’t involve me,” the president said Tuesday afternoon when asked about the Manafort verdict. Setting aside the implications of the Manafort case for the Mueller investigation as a whole, Trump is certainly correct that the specific charges on which Manafort was convicted, and those on which the jury could not reach a verdict, do not involve the president’s conduct. The closest connection is that Manafort’s alleged bank-fraud scheme was ongoing during the time he managed Trump’s presidential campaign.
As we noted above, the story is quite different in the Cohen case. Among the counts to which the president’s former lawyer pleaded guilty are two violations of federal election law: “causing an unlawful corporate contribution,” regarding Cohen’s role in silencing Karen McDougal’s story of an affair with Trump by persuading her to sell the rights to a tabloid that then quashed the story; and “excessive campaign contribution,” regarding Cohen’s payment to Stormy Daniels as part of a hush agreement, for which he was then reimbursed by the Trump Organization.
The criminal information made public Tuesday states that Cohen “caused and made the payments ... in order to influence the 2016 presidential election”—that is, to prevent damaging information about the affairs from surfacing during the campaign. It is the political motive behind the payments that transforms the matter into a question of federal campaign finance law. As former White House counsel Bob Bauer wrote of the Cohen case Tuesday evening, legal constraints on such expenditures are implicated when “motivation[s] materially if not wholly shaped by political objectives” come into play.
The criminal information is not clear on the extent of any coordination between Cohen and Trump personally, though it does state that Cohen “coordinated with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments.” But in his court hearing Tuesday, Cohen accused Trump of personal involvement in both arrangements in all but name, saying that he acted “in coordination with, and at the direction of, a candidate for federal office.” His lawyer then made the connection even more explicit on Twitter:
Today he stood up and testified under oath that Donald Trump directed him to commit a crime by making payments to two women for the principal purpose of influencing an election. If those payments were a crime for Michael Cohen, then why wouldn't they be a crime for Donald Trump?— Lanny Davis (@LannyDavis) August 21, 2018
Trump’s current lawyer Rudy Giuliani declared that, “There is no allegation of any wrongdoing against the president in the government’s charges against Mr. Cohen.” That’s not quite right. Although it might not sound as good for the president, the proper formulation would have been that the Justice Department allowed a defendant to plead guilty to crimes on the basis of factual claims and sworn statements that, if true, potentially implicate Trump as well.
Is a second special counsel needed?
This is not a crazy question.
The purpose of the special counsel structure is to remove the normal Justice Department hierarchy from the process of investigating the president. With the Cohen plea, President Trump’s personal conduct is now clearly a matter of investigation in the Southern District of New York. Under normal circumstances, this would be a prototypical case for the appointment of a special counsel.
For a variety of reasons, however, that step would be unwise here. For one thing, there is no reason to question the Southern District prosecutors’ competence or independence here. (The president controversially interviewed Geoffrey Berman for the position he now holds as U.S. attorney for the Southern District of New York, but Berman has recused himself from this case and his office has conducted itself professionally and admirably.) For another thing, a special counsel would—like Mueller—become a lightning rod for presidential anger and is potentially vulnerable to firing. By contrast, it is very hard for the president to shut down a career-level investigation in the Southern District of New York. Trump can’t fire his way out of this problem. Notably, this case began in the special counsel’s shop and was specifically referred to a normal Justice Department office to be handled in the regular order. At least for now, keeping it there is the right course.
Are there dangers here?
Yes. Big ones.
Major investigations that touch the president directly are always dangerous. Trump accentuates those dangers. The general danger is of presidential distraction. The burden of running the country is real—or at least it should be to a president who takes the job seriously. Being under federal investigation would distract almost anyone. And whether or not one likes Donald Trump should not obscure the reality that interfering with a president’s ability to govern and represent the United States globally—by compromising a president’s legitimacy and by distracting him from governance—is dangerous at the best of times with the most focused of presidents.
Trump is not the most focused of presidents. He is also mercurial and angry. With Trump there is the additional risk of his lashing out, taking vindictive action or engaging in irrational behavior—things he does in spades on a daily basis. This sort of behavior is inimical to cohesive national security policy, which requires presidential leadership and direction. The myriad bureaucracies involved with defense, intelligence, foreign affairs, economic security, law enforcement and homeland security all have different institutional needs, interests and missions. Absent policy direction and leadership from the White House, the national security apparatus does not work optimally on autopilot.
This does not mean that the office of the presidency should be above investigation, or that the risks of these particular investigations are too great to justify them. To the contrary, as described above, prosecutors have shown evidence of serious criminal conduct on the part of Trump’s inner circle, and unveiling Russia’s role in election interference is a matter of great importance for American democracy. The consequences of investigating a president may be great, but the consequences of not investigating such matters are far greater.
Most fundamentally, the burden lies with the president himself not to behave in fashions that necessitate such investigations—and, when they are necessary, to handle them in a manner that minimizes the dangers. Perhaps the greatest danger at this moment is that one can have no confidence that Trump understands this.
As the cloud over the president darkens, we are entering a dangerous period.