Could Trump Go to Prison Once He's Out of Office?

By Ryan Bort, Rolling Stone

11 December 18

Filings made Friday by the special counsel’s office and the Southern District of New York could spell trouble for a civilian Trump

n Friday evening, both Special Counsel Robert Mueller and prosecutors for the Southern District of New York filed memos offering sentence recommendations for Michael Cohen, President Trump’s embattled former attorney who has been a focal point for investigations spanning both offices. The memos were pretty damning for Cohen’s former boss. Mueller wrote that Trump told Cohen to reach out to the Russian government in late 2015, and that he pursued a lucrative real estate deal that would have likely required the cooperation of the Kremlin well into the 2016 campaign. The SDNY wrote that Trump directed Cohen to commit felony campaign finance violations prior to the 2016 election. Trump didn’t seem to think any of this was that big of a deal. “Totally clears the President,” he tweeted shortly after the filings were made. “Thank you!”

On Monday morning, Trump continued to claim he did nothing wrong while also raising the possibility that the president of the United States doesn’t know how to spell “smoking.”

The “simple private transaction” to which the president is referring is a hush money payment of $130,000 given to porn star Stormy Daniels, with whom Trump allegedly had an affair. The payment was made by Cohen through a shell company, and, given that it came in October 2016, was almost certainly made to prevent news of the alleged affair from influencing the election. A separate payment was made in August to acquire the rights to former Playboy Playmate Karen McDougal’s story about her alleged affair with Trump. Prosecutors have argued that because Cohen was involved in campaign matters, the payments — which the SDNY wrote on Friday were made with “the intent to influence the 2016 presidential election” — constituted campaign contributions. “Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments,” the filing read. “In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1.”

“Individual-1” is, of course, Donald Trump, and directing Cohen to make the illegal payments to Daniels and McDougal for the purposes of influencing the election would indeed constitute a felony, regardless of how inconvenient this may be for the president. This goes without mentioning a host of other unknown crimes investigators could be attempting to tie to the president. Contrary to Trump’s tweets Monday morning, these investigators prying into the president’s various pre-election dealings are not “Dems.” As George Conway, the attorney and husband of Trump counsel Kellyanne Conway, pointed out on Twitter, “the criminal campaign-finance violations were found by professional line prosecutors in a Republican-controlled United States Department of Justice.” Conway added that “it looks like a pretty good case.”

The strength of this case has led to renewed calls for Trump’s impeachment. Rep. Jerrold Nadler, the incoming chair of the House Judiciary Committee, said on Sunday that if it is proven that Trump directed Cohen to commit the campaign finance violations in question, it “would be impeachable” and that “even though they were committed before the president became president, they were committed in the service of fraudulently obtaining the office.” Though Democrats will take over the House of Representatives in January, a majority of Senate Republicans would need to sign off on removing the president from office, which isn’t likely to happen minus one hell of a “smocking gun.”

But what happens if Trump is voted out of office in 2020?

The Justice Department has a longstanding policy that a sitting president cannot be indicted, meaning Trump is more or less safe, for now. The filings released Friday have made real the possibility that Trump could be in serious trouble as soon as he leaves office. Rep. Adam Schiff (D-CA) raised the issue Sunday on Face The Nation. “My takeaway is that there is a very real prospect that on the day Donald Trump leaves office the Justice Department may indict him,” he said. “He may be the first president in quite some time to face the real prospect of jail time. We have been discussing the issue of pardons the president may offer to people or dangle in front of people. The real pardon question may come down the road as the next president may have to determine whether to pardon Donald Trump.”

Schiff, whom Trump referred to as “Adam Schitt” on Twitter last month, is the incoming chairman of the House Intelligence Committee and has already announced that congressional Democrats plan to investigate the Trump administration in regard to a number of issues.

Former FBI Director James Comey, who on Friday testified before the House Judiciary Committee regarding the FBI’s handling of the investigation into Hillary Clinton’s email server, suggested what Schiff said outright during an event at New York’s 92nd Street Y. When asked what would happen to someone who did what the SDNY alleged Trump did if they weren’t president, Comey said that “that person would be in serious jeopardy” of being indicted. “The government wouldn’t make that sponsoring allegation if they weren’t seriously contemplating going forward with criminal charges,” Comey explained.

As the New York Times pointed out last week, the statute of limitations for Trump’s alleged crime (or crimes) is likely to run out in 2022, which means he’ll probably be in the clear if he leaves office in 2025 rather than 2021. When voters go to the polls in two years, then, they may not only be voting to remove Trump from the White House, but to put him into prison.