One thing to do upon suddenly finding yourself in criminal jeopardy is try to refrain from sounding like a crime boss while addressing an audience of 54 million people.
He has somehow refrained from using the terms “rat” or “snitch” so far this morning, at least, but the day is young. It’ll probably happen sooner or later vis-a-vis Cohen: He referred to Nixon’s White House counsel, John Dean, as a “rat” just a few days ago.
Says Ken White, “Nothing to see [here], just the President of the United States praising omertà.” Remember, a core plank of his campaign was “law and order.” Now it’s “don’t cooperate with law enforcement.”
That’s probably the first time in U.S. history that “Justice” has been used in scare-quotes by someone to describe a conviction obtained by a department he runs. “A large number of counts, ten, could not even be decided in the Paul Manafort case. Witch Hunt!” he went on to say in Manafort’s defense. “And he was convicted on eight. That’s not a witch hunt. Or if it is, the witches are real,” replies Ben Shapiro. Even former prosecutor Andy McCarthy, a reliable critic of Mueller and the Russiagate probe, is mystified by the “witch hunt” defense today:
I don’t get belittling of Mueller’s Manafort win. He made terrible deal with Gates, & it hurt. But SC pitched a shutout on 8 felonies that were decided, didn’t lose any of other 10 counts, and has home game in DC next time. If point was pressure for Manafort’s cooperation, done.
— Andy McCarthy (@AndrewCMcCarthy) August 22, 2018
As for Obama, his campaign did pay a massive fine for administrative failures in reporting campaign contributions. But there was no allegation there that Obama had personally directed them to do it or did so with criminal intent. If you’re looking for an analogue to Trump’s and Cohen’s payoff to Stormy, look to John Edwards. He too had hush money sent to a mistress during a presidential run, and he was indicted for it. He walked because, in the end, the feds couldn’t prove that the payment was made for the purpose of influencing the election. They’d have an easier time proving that in Trump’s case. After all, Cohen admitted his electoral motive in making the payment yesterday in open court:
Cohen’s lawyer piled on afterwards, pointing the finger directly at Trump:
— John Roberts (@johnrobertsFox) August 21, 2018
The only reason Trump’s not facing criminal charges today, in all likelihood, is that he’s the president and therefore (probably) can’t be indicted.
Which is not to say there won’t be other consequences:
One collateral effect of Mr. Cohen’s plea agreement is that it may allow Mr. Avenatti, Ms. Clifford’s lawyer, to proceed with a deposition of Mr. Trump in a lawsuit that Ms. Clifford filed accusing the president of breaking a nondisclosure agreement concerning their affair.
The lawsuit had been stayed by a judge pending the resolution of Mr. Cohen’s criminal case. Mr. Avenatti wrote on Twitter on Tuesday that he would now seek to force Mr. Trump to testify “under oath about what he knew, when he knew it and what he did about it.”
One thing the DOJ could conceivably do, notes the Times, is indict Trump right now but defer any trial until he’s out of office. That’s a tough call for the department. If they go that route, formally casting suspicion on the president with no immediate intention of trying him, it’ll look like they’re using a grand jury to play politics. “The president is under indictment!” will be a core Democratic talking point every hour until Election Day 2020. Normal politics, to the extent that anything right now is “normal,” would derail with Trump under a formal legal cloud.
On the other hand, if probable cause to believe that a crime has been committed exists, why should the DOJ hold off on announcing it? Trump’s the guy who went to Washington complaining that the powerful get special treatment at the expense of the average joe. Refusing to indict the president when his own lawyer just implicated him in a crime in open court would be a sterling example of that swampy double standard.
One other point about this morning’s tweets. Most legal observers, I think, believe that the president can’t be charged with obstruction of justice for using his pardon power. That power is famously absolute; he’s accountable only to the voters in how he uses it. If he wants to hand Paul Manafort a get-out-of-jail-free card, it’s up to the electorate to deal with him for it. Some have argued, though, that dangling a pardon is a different matter. The obvious point of this morning’s tweets is to let the world know that Manafort continues to enjoy the president’s good favor for refusing to incriminate Trump while Michael Cohen emphatically does not. (“More
If anyone is looking for a good lawyer, I would strongly suggest that you don’t retain the services of Michael Cohen!” he tweeted this a.m.) He didn’t mention pardons, but he didn’t need to. Everyone knows from his track record (Arpaio) that he’s willing to pardon cronies as long as they remain aligned with him. The clear message to other insiders is “Don’t point a finger at me if you want any chance of being let off the hook.” Is that obstruction? You tell me, legal eagles.
Update: Probability of this happening: Small but nonzero. There are no zero probabilities in modern American politics.
Next month’s plot twist:
1. Manafort escapes from custody during his trial in D.C. and goes on the lam
2. Trump takes to Twitter to cheer him on as he tries to evade U.S. Marshals: “Run, Paul, run!”
— Allahpundit (@allahpundit) August 22, 2018