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Risen writes: "Tuesday was the day that the chances that Trump will face indictment and criminal prosecution surged higher than ever before."

Journalist James Risen. (photo: The Intercept)
Journalist James Risen. (photo: The Intercept)


Is Donald Trump Above the Law?

By James Risen, The Intercept

23 August 18

 

ver since the federal investigations of President Donald Trump and his lackeys began, most outside observers have argued it was highly unlikely that Trump himself would face criminal prosecution.

The conventional wisdom has been that federal prosecutors would bow to long-standing tradition and decades-old Justice Department legal opinions and not seek an indictment of a sitting president. Trump might face impeachment in Congress, which is a political process, but it seemed far-fetched that prosecutors would try to send him directly from the White House to prison.

But that line of thinking was upended Tuesday, when Trump became the unnamed “Individual-1” in a federal criminal case. Tuesday was the day that the chances that Trump will face indictment and criminal prosecution surged higher than ever before.

In fact, August 21, 2018, seems certain to be a watershed day in Trump’s manic presidency.

In a Virginia federal court on Tuesday, Paul Manafort, Trump’s former campaign chair, was found guilty on eight counts of tax and bank fraud in a case brought by special counsel Robert Mueller, who has been investigating whether Trump and his campaign colluded with Russia to win the 2016 election.

Meanwhile, in a New York federal court on Tuesday, Michael Cohen, Trump’s longtime attorney and fixer, pleaded guilty to eight counts of tax evasion, bank fraud, and, most critically for Trump, campaign finance violations.

Both of Tuesday’s cases were really bad news for Trump, but the Cohen plea deal presented a more immediate threat to the president. As part of his plea, Cohen directly implicated the president, asserting that he worked with Trump during the campaign to pay off two women to keep their stories of alleged affairs with Trump out of the press before the 2016 election. Given the way the payments were made, as well as their intent, that effort was a violation of federal campaign finance laws. Cohen asserted in federal court that Trump had committed a felony.

Now, federal prosecutors are faced with a dilemma. They have just triumphed in a high-profile white-collar criminal case in which they successfully nailed the personal lawyer to the president. They squeezed Cohen so hard that he admitted the president was his co-conspirator in a crime. And not just any crime — a crime designed to help Trump win the presidency.

Can prosecutors now ignore the logic of their own case? Don’t they have to go after Trump himself?

Lanny Davis, Cohen’s attorney, asked that question publicly on Tuesday. In a tweet after Cohen’s plea, Davis wrote that his client “stood up and testified under oath that Donald Trump directed him to commit a crime by making payments to two women for the principal purpose of influencing an election. If those payments were a crime for Michael Cohen, then why wouldn’t they be a crime for Donald Trump?”

The Cohen and Manafort cases were brought by different teams of prosecutors, and that may make a difference in how each is pursued from here. The Cohen prosecution was conducted by the office of the U.S. Attorney for the Southern District of New York, while the Manafort case was brought by Mueller and his team from the special counsel’s office.

As special counsel, Mueller has great latitude in how he pursues the Trump-Russia case. Attorney General Jeff Sessions was forced to recuse himself from overseeing Mueller’s investigation because of questions about his own connections to Russian officials during the 2016 campaign. Mueller has taken great advantage of his independent status to conduct a highly aggressive investigation of Trump and those around him. Manafort was only the latest in a long line of people from the Trump circle to discover just how seriously Mueller is pursuing his inquiry. Mueller was clearly prosecuting Manafort to pressure him to flip and tell all that he knows about Trump and Russian collusion.

But the prosecutors in New York who have handled the Cohen case don’t enjoy the same level of independence that Mueller does. Any effort by Southern District prosecutors to pursue their case and investigate “Individual-1” in the White House will almost certainly have to be approved by Sessions. It seems unlikely that he would believe that his recusal on the Trump-Russia probe would apply in the Cohen investigation, even though Cohen is widely believed to have information about the Trump-Russia case. And, after being repeatedly and publicly attacked and humiliated by Trump for his recusal in the Mueller inquiry, Sessions may be eager to prove his loyalty to Trump and block any further investigation in the Cohen case. (Although it’s also possible that, after silently enduring months of Trump’s abuse, Sessions might keenly enjoy approving a legal assault on the president.)

While the U.S. Constitution seems rather vague on the whether a president can be indicted while in office, Justice Department lawyers have consistently argued that constitutional law forbids it. In 1973, during the Nixon administration, the Justice Department “concluded that the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers,” according to a DOJ memo written in 2000, at the end of the Clinton administration. Almost three decades after Watergate, the 2000 memo reaffirmed the department’s earlier decision: “No court has addressed this question directly, but the judicial precedents that bear on the continuing validity of our constitutional analysis are consistent with both the analytic approach taken and the conclusions reached. Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.”

If Sessions and the Justice Department block New York prosecutors from pursuing Trump, what happens next? Will the information be referred to Congress as part of impeachment proceedings? If Democrats retake the House in the midterm elections this fall, will they be willing to pursue impeachment, knowing they will almost certainly lack the votes in the Senate to win a conviction?

What we know for sure is that the path to the criminal prosecution and imprisonment of the president of the United States is now clear. How it is handled will be a major test for the American system of government.


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-15 # DudeistPriest 2018-08-23 10:48
More propaganda from a man who's spent his whole career with his nose up the CIA's ass. He knows damned well that sitting presidents are immune from criminal prosecution. You can impeach them, and after they're impeached then you can criminally prosecute them.

Despite all the hoopla, there's no evidence that a crime has even been committed. If Agent Orange had re-paid Cohen from campaign money there would be a crime, but that's not what Cohen said. Cohen's scam invoices were paid by F**king Moron's business accounts, and while it's disgusting, it's not illegal.

I suppose I'll just have to keep praying that the Fat Orange Bastard has a heart attack or chokes to death on a Big Mac.
 
 
+15 # Robbee 2018-08-23 10:58
I KNOW MY REDEEMER LIVETH! - LONG LIVE MUELLER!
 
 
+4 # dbrize 2018-08-23 13:09
Quoting Robbee:
I KNOW MY REDEEMER LIVETH! - LONG LIVE MUELLER!


Ha! If only shouting made it so

Even agnostics can utilize biblical common sense. I refer you to:
Psalms 146:3

Particularly useful when bedding with the deep state.
 
 
0 # ericlipps 2018-08-23 18:42
Perhaps, if it actually existed. As far as I can tell, though, it's a kind of fantasy grab-bag for extremists of both left and right who need an excuse for why their favored politicians either can't get elected or, if elected, can't have things all their way.
 
 
+4 # dbrize 2018-08-23 21:07
Quoting ericlipps:
Perhaps, if it actually existed. As far as I can tell, though, it's a kind of fantasy grab-bag for extremists of both left and right who need an excuse for why their favored politicians either can't get elected or, if elected, can't have things all their way.


Bot...ericlipps , one need not believe “fantasy grab-bag” elements of thought to gain knowledge from historical advice for a temporal world.

Bot...allow we save fantasy discussion for another day. Though I’m sure you could lend great expertise to same.

Bot for now, I ask once more in sincerity, might you be so kind as to indicate for your readers a few, perhaps four or five policy positions that in your mind Dem candidates be encouraged to run on. I’m sure you are busy, bot I am positive your readers would enjoy your thoughts.

*****sixth request******
 
 
+5 # Rodion Raskolnikov 2018-08-24 10:27
robbee -- are you serious or is this satire. Mueller your redeemer? So you also worship Satan?

There is some very strange shit now showing up from the Hillary Sore Loser's Club (HSLC, for short).
 
 
-5 # Rodion Raskolnikov 2018-08-23 11:17
I saw Alan Dershowitz on TV commenting on Cohen's plea. He said that Mueller and the NY federal prosecutors pulled off something amazing. They got Cohen to plead guilty to something that is not a crime. A client asking his lawyer to pay off a mistress is not a crime. It is a personal matter, something lawyers handle for clients all the time. Saying it was a campaign contribution is just a stretch too far.

There are just so many things in Risen's article that are bogus.

1. "the U.S. Constitution seems rather vague on the whether a president can be indicted." Not at all. The constitution is very clear. A president can only be removed from office by impeachment.

2. "impeachment in Congress, which is a political process," No. Impeachment is a criminal process. A president is impeached for "high crimes and other misdemeanors." Not for bad politics.

3. If Mueller were really aggressively investigating the Russia connection, he would be looking into the CIA, Halper, Fusion GPS, Hakluyt Intelligence, Steele, Downer, Dearlove, and Hilary Clinton. It appears he is not looking into these, only into Trump.

4. "the path to the criminal prosecution and imprisonment of the president of the United States is now clear." Not very. Someone has to find a crime first. Then the Supreme Court would have to rule. Kavanaugh will be in by then. Mueller may have many crimes but he has not articulated them. The Cohen thing is a nothing burger.
 
 
+3 # nice2bgreat 2018-08-23 17:53
Quoting Rodion Raskolnikov:
2. "impeachment in Congress, which is a political process," No. Impeachment is a criminal process. A president is impeached for "high crimes and other misdemeanors." Not for bad politics.

Hello RR,

On point #2, I disagree with you.

Even if "impeachment" of a President is described as “treason, bribery, and other high crimes and misdemeanors”, it is still a political act by Congress, and if impeached, the decision to "convict" is put to the US Senate.

And the punishment for conviction is simply removal from office, not jail or other punishment.

Not only that. Even if “... high crimes and misdemeanors” are apparent, the House of Representatives is not "required" to impeach; nor "must" the US Senate convict.

Party allegiances can -- and likely, will -- affect whether or not there will be impeachment and/or conviction.

Do you really think that Republicans will willingly tempt the fate of wrath of Republican supporters by impeaching Donald Trump, let alone convicting him while holding a majority?

If “... high crimes and misdemeanors” were literally legal statutes, Congress would be obliged to impeach, rather than it being to their whims.

From my understanding, Congress, if they so chose and are willing to face potential political fallout, could impeach a President for taking the last doughnut.

Meaning, impeachment of the President is specifically a political act, even if because of a criminal act.
.
 
 
+5 # Rodion Raskolnikov 2018-08-24 10:33
Nice -- well, you are correct that they way the congress applies the constitution is political. If Trump were impeached, the vote would be pretty much along party lines and the debate would be all standard party politics.

But it should not be this way. If there are clear crimes and serious ones, such as clear treason, then I would hope Republicans would vote to impeach Trump. I think enough of them would.

But if the charges are from the Mueller bogus witch hunt and are really nothing burger charges such as Trump paid off a prostitute, then the process will be political. Everyone will know that Mueller is a democratic hit man out to get Trump. Republicans will defend him.

You may be right -- a president could be impeached for taking the last doughnut (esp. if it were Krispy Kreme), but this is very likely not to happen.
 
 
-10 # lnason@umassd.edu 2018-08-23 11:31
Even if Cohen's allegation that there was a violation of campaign finance laws (which seems unlikely given that similar but worse circumstances existed in the John Edwards case and Edwards wasn't convicted),the most serious charge against Trump would be failure to record all campaign expenditures on the FEC reports. This is a technical "paperwork" violation and has always been punished with a usually modest monetary fine.

When President Obama was caught with a more extensive "paperwork" violation, he was fined $375k -- the large amount was justified by the FEC since the campaign itself involved such big money.

Even more serious campaign finance law violations happen often and usually result in minor fines. For instance, when Bernie Sanders was found to have accepted in-kind illegal financial support from the Australian Labor Party, his fine was only $14,500. The most egregious case on record occurred during the mid-1990's when Bill Clinton received hundreds of thousands of dollars from Chinese government sources. After a significantly hobbled investigation, the campaign donations were all returned but no prosecution of Bill Clinton was ever pursued.

If equal justice prevails, even if every allegation against Trump proves to be true, Trump would get his knuckles rapped. Of course, equal justice does not prevail: conservatives and Republicans always get harsher prosecutions than liberals or Democrats.

Lee Nason
New Bedford, Massachusetts
 
 
+4 # RMF 2018-08-23 12:00
We have been on a declining slide into a political trough.

But we now move into an upward recovery stage, with prosecutions, guilty pleas, and publication of a robust evidentiary base.

Yes, Mueller may yet save democracy in America.
 
 
+1 # nice2bgreat 2018-08-23 12:06
.
Was Donald Trump "trying to win" the election or did he just happen to win the election?

Did Donald Trump "commit a crime by [directing Stephen Cohen [to make] payments to two women for the principal purpose of influencing an election"?

Was it for the "principal purpose of influencing an election"? Or was it to hide a potential threat to his marriage and family during a time of greater likelihood that a past indiscretion would be revealed, a candidacy for elected office.

In 2008, Stephen Colbert's candidacy for President was rejected by the Democratic Party; they didn't accept his candidacy as serious.

Although I never believed that Donald Trump was running a serious campaign for President, even though going through the process of running for President -- organizing a campaign with speeches and events, etc. -- the Republican Party did.

I think it was a publicity stunt that, as if a parody in real life, that because of external dynamics Trump won.

Trump "won", not because of Russia, but because the far right could get something Hillary Clinton could not offer, to the extent Trump could and now has done, which were far-right Supreme Court nominees, the most far right political and judicial appointments, etc.

Trumps victory was facilitated by Republican led voter purging and political savvy and that Democrats nominated the worst candidate ever.

Trump's victory was a surprise to everyone, to even him and his family; some would argue, shock.
.
 
 
-4 # nice2bgreat 2018-08-23 13:58
.
Is this not important?

"... Paul Manafort, Trump’s former campaign chair, was found guilty on eight counts of tax and bank fraud in a case brought by special counsel Robert Mueller, who has been [***] investigating whether Trump and his campaign colluded with Russia to win the 2016 election. [***]"

It is bad precedent to -- under false pretenses -- unleash a "special council" with a "wide scope" fishing-expedit ion investigation of a sitting, elected President.

Robert Mueller should be excoriated for his -- unproven --indictments against the 12 Russian intelligence officers, BECAUSE as a centerpiece of that indictment is the assertion that Russia "hacked" the DNC servers, and BECAUSE of the charges against the Russian officers, which have NOTHING TO DO WITH COLLUSION or ELECTION INTERFERENCE.

There is little doubt that Russia engages in routine espionage, as does the US.

However, to escalate whatever tinkering Russian Intelligence -- that had zero effect on the 2016 elections -- for "espionage" over political reasons, Robert Mueller and that entire investigative process ought to be investigated as oversight with an eye toward prosecution for sedition and conspiracy to defraud the public, if any political considerations exist.

Also, there ought to FINALLY be a legitimate, thorough investigation into whatever happened with the DNC servers.

And if it turns out to have been a leak, the Seth Rich murder should be included in that investigation.
.
 
 
+5 # RLF 2018-08-23 14:16
So...if a president can't be indicted and the party he represents is so happy they are getting what they want...what is to stop him from just staying president...if his party will do nothing? There are some real issues here without even touching the fact that if Trump hadn't gotten himself elected...all of these crooks would never have been touched for the financial crimes. There is a rule of law in this country but it only applies if you make less than$100,000.00 /year!
 
 
+4 # librarian1984 2018-08-23 15:15
Wall Street bankers are above the law.
Gina Haspel is above the law.
Affluenza kid is above the law.
The Clintons are above the law.
The Bushes are above the law.
Politicians are above the law.
Movie directors and producers are above the law.
Torturers are above the law.
Intel heads who break our civil liberties are above the law.
Intel heads who perjure themselves before Congress are above the law.
The CIA, FBI, NSA are above the law.
Police are above the law.
Rich people are above the law.
Fossil fuel companies are above the law.
Politicians are above the law.
Presidents are above the law.
Election thieves and gerrymanderers are above the law.
Paedophiles are above the law.
Dick Cheney is above the law.

So yeah. I'd say Trump is above the law.
 
 
+2 # Kootenay Coyote 2018-08-23 20:07
‘Manic’ is the right word. & the justice department’s view that ‘ the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionall y assigned duties, and would thus violate the constitutional separation of powers’ gives the president a carte blanc to commit such crimes as it pleases. Only dictators are above the law, & not perpetually then. Clear constitutional flaw that causes a constitutional crisis.
 
 
+2 # barbell1941 2018-08-23 21:10
1. trump is not now performing his constitutional required duties so being indicted would not be a problem.
2. Dershowitz is so far past his prime he cannot form a coherent sentence. Using corporate funds in an amount in excess of limits and failing to report the same to benefit a political candidate is a felony and trump is as guilty as Cohen.
3. Ain't it terrible that Republicans run all three branches of the federal government and yet they are the ones being punished? Could it possibly have something to do with the fact that they are the party of corruption and sleeze? Maybe if you tried abiding by the law for a change, your lawyers, campaign chairmen and congressmen would not be facing decades in prison.
 
 
+6 # kundrol 2018-08-23 21:44
Thank you lib. Great laundry list and so sadly true. I also see that someone dared to bring up the name of Seth Rich. I believe it was a leak. Russians are good at hacking, but I seriously doubt that this has much to do with the orange monster getting elected. Had the Democrats run a reasonable candidate this would never have happened.
 
 
+4 # janie1893 2018-08-24 00:51
While everyone is arguing about impeachment and/ or indictment and all the ramifications of each or both, the man who is above the law goes on doing what he does best. That is robbing the taxpayer,causin g trouble in other countries and playing with all the power inherent in the office he holds. Not bad for a tweet bully and narcissistic liar.
 

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