The first piece of advice an attorney would give a client facing an investigation would be to keep your mouth shut. Donald Trump’s tweets this morning provide an excellent example of why. In attempting to rebut the testimony of Michael Cohen, Trump at least implies that he did direct the payoffs to two women, a key part of Robert Mueller’s latest filings:
“It was done correctly by a lawyer” at least implies that Cohen really was acting as Trump’s attorney and under his direction in paying off the two women. Maybe Trump figures there’s not much left to hide on this point, but it’s worth noting that Trump denied the affair publicly for months, although he did acknowledge the payment. The payoff agreement to Stormy Daniels in particular used a false name (“David Dennison”) to cover his identity, although it’s apparently stipulated in a side agreement.
CNN’s Manu Raju wondered about this as well:
Trump seems to be referring to the scheme Cohen admitted to – allegedly at Trump’s direction – to pay off women and keep them silent about his affairs just days before 2016 election as a “simple private transaction” https://t.co/h6Df85kMUU
— Manu Raju (@mkraju) December 10, 2018
It’s not a direct admission, but it’s not the kind of statement that helps defense attorneys build reasonable doubt among jurors, either. If it comes down to that, and it might at some point, these kinds of public statements won’t be helpful.
What about Trump’s argument that it should be treated as a civil matter, like Barack Obama’s FEC issues? The Obama campaign did pay $375,000 in FEC fines in 2013, but the violations were somewhat different (although still serious). They certainly involved a lot more money:
The fine was imposed after an audit of the campaign’s books showed that it failed to report the identities of donors who gave large checks in the weeks before the 2008 election, according to a copy of the agreement between the FEC and the president’s campaign.
The document shows that the Obama campaign failed to disclose the identities of donors responsible for $2 million in contributions in the weeks ahead of the election. The campaign also misreported the dates of $85 million in other contributions.
In addition, the Obama campaign also kept $1.3 million in contributions that were above the legal maximum allowed for a federal campaign, failing to return them within the 60 days required by law. The campaign kept almost $874,000 of those donations until the FEC discovered they were unlawful.
Trump can argue that all that happened here was that two large and illegal donations didn’t get reported properly. (In fact, that’s what he seems to admit here, although he still doesn’t it was illegal.) The difference between the two is the same difference between the FEC violations of Obama and John Edwards. The “contributions” in the cases of Trump and Edwards were used to cover up information relevant to the character of the candidates, while the Obama campaign used them for campaign operations until they had to return the money. The Department of Justice prosecuted Edwards for his crime, although a jury ended up letting him off the hook.
Finally, one can argue that Trump can’t just stay quiet and let his attorneys handle his defense. Trump’s biggest vulnerability, this argument would say, is political rather than legal and that he needs to hit back fast, hard, and effectively to counter Mueller’s new filings. Maybe that’s true in the short run, but even then, Trump would need to take care to keep from opening himself up to unsolicited public admissions for the longer-run legal problems. Why not give this task to Rudy Giuliani, whose potential missteps won’t implicate Trump as his own statements might?
And if the point of this is to bolster his political credibility, writing about “smocking guns” — twice — doesn’t help, either.