There was a lot revealed – and redacted – in prosecutors’ latest court filings in the multiple investigations swirling around President Donald Trump.
Trump’s former personal lawyer, Michael Cohen, faces years in prison for a number of offenses, including paying off adult film star Stormy Daniels and Playboy model Karen McDougal for their silence over alleged affairs with Trump.
But most striking in those filings is that prosecutors say they have evidence to prove that Trump directed the illegal hush money payments.
Meanwhile, prosecutors want no prison time for Trump’s former national security adviser, Michael Flynn, who provided ample assistance to investigators.
And former Trump campaign chairman Paul Manafort faces a harsh reality for lying to special counsel Robert Mueller’s office.
Joining us with insight into the latest legal revelations is Renato Mariotti, a former federal prosecutor and former candidate for the Democratic nomination for Illinois attorney general who is now a partner at the law firm Thompson Coburn.
Below, and edited Q&A with Mariotti.
One of the court filings last week one said that Trump directed his lawyer, Michael Cohen, to violate campaign finance laws for the payoffs to Stormy Daniels and Karen McDougal. But Trump says it was a simple private transaction. Can that be a private transaction?
Well, something can be a private transaction and still be a violation of campaign finance laws. So, for example, if I was a candidate for office and someone agreed to spend $2 million promoting me in advance of a campaign or providing me a private jet or something like that, if it was done for purposes of carrying forward my campaign, I would need to report it. The main issue here is the reporting of that transaction and whether or not it was properly disclosed to the public through the FEC.
Trump is saying this this can be a finable offense like President Barack Obama’s campaign finance offense. Is that true?
Well, let’s take a look at it. The long and short of it is that somebody can violate the campaign finance laws and be fined even if they make mistakes. And in the case of President Obama’s campaign, what they were accused of doing and ultimately paid a fine to settle was that they did not file required notices in time of certain donations.
Here, you have transactions that were run through shell companies created specifically for the purpose of facilitating those transactions. In one case, you have the funding for that transaction coming from the personal funds of Michael Cohen through a home equity line of credit that he obtained through fraud. And then that money flowing through the shell company and then him being reimbursed through the Trump Organization via documents that contain false statements according to the Southern District of New York. What you have is a transaction that appears to be designed in a manner to be hidden. And certainly one might have the defense that there are other reasons why one would want to hide those activities from the rest of the world. But the Southern District of New York felt that, or believed that they had proof beyond a reasonable doubt that these expenditures were related to the campaign. Michael Cohen and his attorneys felt that the evidence was sufficient to require them to plead guilty to those offenses. And so that proof, whatever proof that is, whatever evidence they had, would also be used against the president on that same point.
Cohen admitted that he lied to Congress about the ongoing Russian business dealings during the primaries and the caucuses and he’s being charged with lying to Congress. So is that a signal to others in this ongoing story?
Yeah it is. It is a signal. And what it tells me is two things. One, that Mueller believes that lying to Congress about Russia-related issues is within the scope of his investigation. And the leadership of the Justice Department, like acting Attorney General Matt Whitaker. I agree with him. That’s the first thing. Second of all, that he’s willing to indict and prosecute individuals for lying to Congress. I think that is an important point because if I represented someone like, for example, Donald Trump Jr. or Roger Stone, I would be concerned about their potential exposure for lying to Congress and I would be closely scrutinizing my client’s transcripts to see where there might be potential liability.
Second, I think it also is very important and impactful because Michael Cohen through his attorneys revealed that his lies to Congress were done after consultation with Trump’s attorneys and the White House staff and Mueller did not correct that point and seemed to make statements that were least consistent with what Cohen had alleged. And so you may have the potential that others were involved in the lies that Cohen told the Congress.
Cohen is going to be sentenced on Wednesday in New York but SDNY is not recommending leniency for him. He did cooperate somewhat. So what’s the lesson from only cooperating on your own terms?
I would say, typically, cooperation with the feds is an all-or-nothing enterprise. Either you cooperate 100 percent or you don’t cooperate at all. That’s generally how federal prosecutors operate that requires (a person to) cooperate or to tell the prosecutors everything about their own wrongdoing as well as all the criminal activity that they know about. For some reason, Mr. Cohen was not willing to do that and he’s tried to have it both ways. He’s trying to say that he fully cooperated while refusing to divulge all of his own prior criminal acts or all the criminal acts by others that he’s aware of. That obviously made prosecutors in the Southern District of New York not very happy. They were not willing to recommend a full credit for his cooperation.
The lesson that I would tell a client is that if you want full credit from the government you can’t try to be cute and have your cake and eat it too. You have to go all in with the government if you really want the full credit for cooperation and that’s I think the lesson to be drawn there.
Michael Flynn seems like he’s earned a lot of credit for his cooperation with the DOJ recommending a lenient sentence for him. What do you read into that?
He certainly provided useful information to the special counsel and I think they had very laudatory things to say about his cooperation in the document. And then in addition to that I would just say that the main benefit that he negotiated was something he negotiated up front, which is only to be charged with making false statements to the FBI. That carries a much lighter sentence than a lot of other things. And there’s at least an indication of one other crime that he could be charged with in the document which is being registered as a foreign agent. So really the government didn’t have to go far underneath the guideline range because the guideline range I think was zero to six months based on the fact that it was only it’s a lesser crime to be charged with lying to the FBI in the scheme of things compared to some of the other crimes that Cohen, for example, is charged with.
How bad does it look for Paul Manafort?
He’s in really big trouble. You better hope that he’s getting a pardon from the president and that Virginia state prosecutors are not interested in pursuing him. But things are looking very bad for him right now.
No sitting president has ever been indicted. Could the Supreme Court hear a challenge to that DOJ policy?
So I don’t think it will reach the Supreme Court because the Justice Department has that policy so they won’t indict. The way it would reach the Supreme Court is if a state prosecutor indicted the president. I do think one interesting question is whether or not the statute of limitations would bar the president from ever being charged with this. The statute of limitations for the campaign finance offense will run in late 2021. So if the president lost re-election he would be able to be indicted in 2021. If he wins a second term, the question would then be is there a way to extend the statute of limitations. Prosecutors could charge a scheme or conspiracy that would extend the statute of limitations because it would count later actions taken by Cohen or the president in furtherance of that conspiracy.