The prosecutors who have declared war on the president

This article first appeared in The Edge Financial Daily, on August 28, 2018.
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IN the span of one week, we learned that the Office of the US Attorney for the Southern District of New York had both secured a guilty plea from The Trump Organization lawyer Michael Cohen and offered an immunity deal to the company’s chief financial officer, Allen Weisselberg. US President Donald Trump should be worried. Once the Southern District gets its jaws onto a string of crimes, it doesn’t let go.

Weisselberg, as part of his deal, will likely be required to provide information on all criminal activity he knows about. That spells potential disaster for Trump personally, and major problems for his presidency. That’s apart from any potential state-level criminal investigation by the New York district attorney’s office.

Trump is now facing a two-front war against the Justice Department. The team led by special counsel Robert Mueller is supposed to focus on Russian interference in the 2016 election. But the Southern District can investigate any aspect of Trump’s behaviour that took place in its jurisdiction, at any time.

And unlike Mueller, who could in principle be fired, the Southern District is not one man; it is a whole office of career lawyers. It cannot be fired. Even if Robert Khuzami, the acting US attorney in this case, were removed, no new US attorney could realistically call off the prosecutors.

Why should we think that the Southern District will not be satisfied with having convicted Cohen?

For one thing, there is Cohen’s statement when he pleaded guilty to campaign finance crimes. Cohen said in open court that he had acted at the direction of the candidate, meaning Trump.

That statement was not legally necessary to the guilty plea. But Cohen was not acting on his own when he made it. According to Cohen’s attorney, Lanny Davis, the statement was made in consultation with the Southern District prosecutors.

That means the Southern District actively wanted to make Cohen implicate the president. The prosecutors or Khuzami could have easily taken the more cautious path of convicting Cohen without demanding that he make any public statement with regard to Trump.

They chose otherwise. In essence, by making Cohen say he acted at Trump’s direction, the Southern District declared war on the president.

Then there’s the Weisselberg immunity grant. Although the reporting so far indicates that Weisselberg’s deal was limited to testimony about Cohen’s conduct, it seems likely prosecutors have bigger things in mind. To convict Cohen, the Southern District didn’t need the CFO’s testimony. There was already plenty of documentary evidence against Cohen.

And Cohen’s guilt did not depend on whether he was ever paid back by the Trump Organization for the payoffs he made to two women alleging affairs with Trump. According to the prosecutors (and the plea itself), Cohen’s campaign finance crime was complete when he made the payment from his own funds in coordination with the campaign.

Weisselberg’s usefulness then is almost certainly in areas beyond the Cohen case — in any investigation into criminality in The Trump Organization. That could take many forms. The Southern District could explore money laundering crimes, tax evasion, or bribes of foreign officials or governments, which are illegal under the Foreign Corrupt Practices Act.

The Cohen conviction makes any such Southern District investigation normal and logical, not a “witch hunt.”

Consider that the prosecutors now have strong evidence that The Trump Organization was part of a conspiracy to commit campaign finance violations. The repayment of Cohen by the Trump Organization makes the company fair game.

In any ordinary criminal investigation by the Southern District, evidence that a corporation has been used as part of a criminal conspiracy, with the knowledge and involvement of its owner and CFO, would naturally trigger further digging. Was this the first time The Trump Organization ever acted criminally? The Southern District prosecutors are going to want to know the answer. And they’re going to find out.

The upshot is that Trump is vulnerable to further revelations of criminal behaviour. Some will no doubt have nothing to do with Russia. Others, such as money laundering, may turn up connections to Russians.

The digging by the Southern District should be a clue to Trump that, when he leaves office, an indictment may be waiting. That would make it hard for him to do his job as president. It would also give him an incentive to resign and be pardoned by Mike Pence.

And if the Southern District wanted to go after Trump before that, it has tools aplenty at its disposal. It doesn’t seem inconceivable that the office could seek to indict The Trump Organization itself and seize assets derived from criminal activity. Or it could use the Rico statute to get a court to deem the organisation a criminal enterprise.

Current Department of Justice guidelines say a sitting president cannot be indicted. But they do not say anything about indicting the president’s business. And the US Supreme Court in the Paula Jones case held that the president may be subject to a civil suit, so any civil proceedings against Trump’s businesses are also within bounds. The Southern District has a civil office, too.

It remains to be seen how far the Southern District will go. But its opening salvo — Cohen’s statement against the president — already went further than any part of the Justice Department has gone since Richard Nixon’s administration. When it comes to taking on the president, the Southern District has already shown that it’s not afraid. — Bloomberg 

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to US Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”