What if Trump and Cohen get sent to the same prison and end up leading rival gangs?
Back in September, the DOJ sent the National Enquirer’s parent company, AMI, a letter setting out the terms of its immunity agreement with the government. Attached to that immunity agreement was a statement of admitted facts. Quote:
Note the language: “Assisting the campaign.” That’s a nod to the apparent purpose of this arrangement, to influence the election. Which would make any money paid by AMI to “catch and kill” stories unfavorable to Trump a campaign contribution.
The DOJ didn’t specify who the other “member of the campaign” in the room with Cohen and Pecker was, but the WSJ reported last month that Trump himself had met with Pecker that same month and asked him, “What can you do to help my campaign?” That’s not a direct quote in the Journal’s piece. It’s the newspaper’s own phrasing of Trump’s words. But that too suggests that the candidate himself viewed the payoff to Karen McDougal from the very beginning in terms of influencing the election, not sparing his family from embarrassment.
Now here’s NBC with its own sources claiming that Trump was indeed in the room with Cohen and Pecker when this was discussed.
Donald Trump was the third person in the room in August 2015 when his lawyer Michael Cohen and National Enquirer publisher David Pecker discussed ways Pecker could help counter negative stories about Trump’s relationships with women, NBC News has confirmed…
Daniel Goldman, an NBC News analyst and former assistant U.S. attorney said the agreement doesn’t detail what Trump said and did in the meeting. “But if Trump is now in the room, as early as August of 2015 and in combination with the recording where Trump clearly knows what Cohen is talking about with regarding to David Pecker, you now squarely place Trump in the middle of a conspiracy to commit campaign finance fraud.”
“The recording” he mentions is one you’ve already heard. Remember?
COHEN: Even after that, it’s not going to ever be opened. There’s no, there’s no purpose for it. Um, told you about Charleston. Um, I need to open up a company for the transfer of all of that info regarding our friend, David, you know, so that — I’m going to do that right away. I’ve actually come up and I’ve spoken —
TRUMP: Give it to me and [UNINTELLIGIBLE].
COHEN: And, I’ve spoken to Allen Weisselberg about how to set the whole thing up with …
TRUMP: So, what do we got to pay for this? One-fifty?
That call happened in September 2016, a month after AMI had hushed up McDougal by buying the rights to her story of an affair with Trump. What Trump and Cohen were discussing was allegedly a deal to buy those rights from AMI for $150,000, the same amount the company had paid for them; by acquiring the rights, the new shell company created by Cohen would be able to exert direct control over McDougal in preventing her from telling anyone of the affair. That deal was never made, possibly because AMI got spooked and realized how dubious it would look if a media company was acting as a middleman for a political candidate in bribing women he’d dallied with into silence. But here again you have Trump seemingly fully aware of what’s going on with McDougal (the reference to “our friend, David” is apparently Pecker) and, importantly, Allen Weisselberg seemingly aware too.
And both Pecker and Weisselberg now have immunity from the Department of Justice.
That’s three well-placed witnesses all potentially poised to testify that POTUS was in on the scheme to silence McDougal from the start, maybe with some hard evidence a la Cohen’s audio to back them up. It’ll blow a hole in Trump’s defense that he didn’t know about the payments if they do. He could, of course, still argue that the payments don’t qualify as campaign contributions even if they were made for the purpose of influencing an election, as various conservative lawyers are now claiming. That’ll be a question for the courts. Or he could argue that he knew about the payments but didn’t know that they were illegal. It was Cohen’s job to know that; he’s the lawyer, after all. (Trump made this point in his Fox interview today, in fact.) I’ll leave it to legal eagles to opine on that but it occurs to me that if you’re off the hook for illegal activity so long as your lawyer is used to facilitate it then any mob boss could be effectively immune from prosecution by getting his lawyers to issue all orders to underlings. “My lawyer didn’t tell me I was breaking the law. How can I be held responsible?” Plus, the fact that Trump, Cohen, and Pecker all worked to keep the deal with McDougal secret might be used as evidence that POTUS knew it was unlawful. Although that’s sort of silly — he wanted secrecy first and foremost to hide the affair from the public. That doesn’t prove that he knew that he was supposed to reveal the expense to the FEC and deliberately refused.
Question: Where is all of this headed, exactly? In Mueller’s case, we know the endgame. He’ll submit a report to the AG laying out the findings of his investigation. That report will presumably end up in the hands of the House of Representatives. Then Pelosi will have a decision to make. The Cohen/Pecker investigation isn’t being run by Mueller, though, it’s being run by the Manhattan U.S. Attorney. Cohen’s already pleaded guilty; Pecker and Weisselberg won’t be prosecuted. Trump himself presumably can’t be charged as a matter of DOJ policy, because it’s unconstitutional to use the power of federal prosecution against the officer in whom that power resides. And there’s no “report” to be issued. The U.S. Attorney issues indictments, not reports. All of which is to say that, unless I’m missing something, this whole matter might just … go away, at least until Trump leaves office and the question of whether to indict him revives.
But maybe the U.S. Attorney’s filings in the Cohen matter are their “report.” That’s a jumping-off point potentially for the House Judiciary Committee to call the U.S. Attorney before the committee and testify about Trump’s role in the McDougal payoff. What if they ask him whether probable cause exists to believe the president violated federal campaign finance law? What if he says yes? And does Pelosi really want to open that can of worms? A bombshell finding by Mueller of collusion would make the impeachment question relatively easy for her. But a finding that Trump paid off some mistresses and then tried to keep that quiet and maybe misunderstood the FEC’s rules in doing so and maybe did nothing illegal after all depending on how one defines “campaign contribution” — that would be a much harder sale. I wonder if Dems will look the other way at the McDougal matter until Mueller has something to show them and then bundle all the allegations against Trump together. Although even that has some headache potential for them: What if Mueller has nothing big on Trump? Then they’d be stuck having to decide whether to drop impeachment altogether or to go through with it based solely on the McDougal case, which will look weak and unfair after he’s been “vindicated” on Russiagate. Trump’s facing a political nightmare but so is Pelosi to some extent.