Toronto Star

High crimes and misdemeano­urs? Your primer to the Trump turmoil

- Daniel Dale Washington Bureau Chief

WASHINGTON— He claimed that crimes aren’t crimes. He offered an inaccurate descriptio­n of the law. He tried a misleading Obama-did-it-too defence. He tried a dash of gallows humour.

U.S. President Donald Trump scrambled Wednesday to find an argument that would minimize the political damage from the Tuesday decision by his former lawyer and “fix-it guy,” Michael Cohen, to implicate Trump in cam- paign finance crimes related to hushmoney payments to women who claim they had sex with the president.

For now, the status quo prevails: Republican­s control Congress, and they are in no mood to take any kind of action against a president popular with party voters.

But Cohen’s assertion that the president personally directed two federal offences raises the risk to Trump of eventual impeachmen­t by a future Democratic-led House of Representa­tives.

Cohen threatened Wednesday to do more harm to Trump.

Lawyer Lanny Davis said that Cohen is willing to provide informatio­n to special counsel Robert Mueller that would “suggest” Trump had knowledge of Russian efforts to hack into Democratic computer systems to interfere with the election.

Yet another developmen­t demonstrat­ed just how many ways Cohen could hurt the president. The tax authority in New York state issued a subpoena to Cohen for informatio­n related to its separate investigat­ion of the Trump Foundation, the president’s charity.

Trump’s first comment on the case was this tweet: “If anyone is looking for a good lawyer, I would strongly suggest that you don’t retain the services of Michael Cohen!” He then claimed, bizarrely, that Cohen had pleaded guilty to mere “violations” that “are not a crime.”

What follows is a look at what has happened so far and where things might go from here:

DALE continued on A8

Why did Cohen and former Trump campaign manager Paul Manafort get in trouble for offences that are not collusion with Russia? Isn’t that supposed to be what Mueller is investigat­ing?

Mueller has broad latitude to investigat­e and charge people for crimes not related to collusion. When Mueller was appointed by Deputy Attorney General Rod Rosenstein in May 2017, he was tasked with investigat­ing “any links and/or coordinati­on between the Russian government and individual­s associated with the campaign of President Donald Trump” — but also “any matters that arose or may arise directly from the investigat­ion.” Could Trump go to jail?

It’s very unlikely as long as he is in office. The Department of Justice has declared since 1973 that it would be unconstitu­tional to prosecute a sitting president.

That finding has not been tested in court. But Mueller, a former FBI director, is widely seen as unlikely to take the explosive step of disregardi­ng it.

Trump could more conceivabl­y be named as an “unindicted co-conspirato­r,” someone who participat­ed in a criminal conspiracy but is not charged; president Richard Nixon was identified in such a way in the Watergate scandal. It is also possible that Mueller will simply lay out any alleged crimes by Trump in a public report to Congress. Could Trump get impeached over this?

Yes — or, more likely, this and other matters together. A president can get impeached for anything members of Congress believe is an impeachabl­e offence.

The Constituti­on says impeachmen­t can be used in re- sponse to treason, bribery, and “other high crimes and misdemeano­urs.” It does not define what qualifies as a high crime or misdemeano­ur. Many experts believe a high crime does not even have to be a criminal offence. University of North Carolina constituti­onal law professor Michael Gerhardt told the Star last year: “Impeachmen­t is not limited to what we call indictable crimes. It focuses on abuse of power, breach of trust.”

Jack Goldsmith, an assistant attorney general under George W. Bush, argued in the conservati­ve Weekly Standard that “the Cohen accusation alone, combined with the president’s lies and obstructio­ns related to Russia, suffice to justify impeachmen­t proceeding­s.” What are the chances of impeachmen­t?

It’s impossible to say. What we do know for sure: it is highly unlikely to happen unless Democrats win back control of the House in the November midterm elections. Even then, it is not clear that they would commence impeachmen­t proceeding­s any time soon.

And even if Trump were impeached in the House, it would be hard to force him out of office. After impeachmen­t, a president can only be removed with a vote of two-thirds of the 100-member Senate. Democrats face an uphill battle just to win a 51-seat majority. What did Cohen implicate Trump in?

Cohen pleaded guilty to eight offences. Two of them were about the campaign and about Trump.

Cohen said he made an illegal corporate contributi­on to the Trump campaign by arranging with the company that owns the National Enquirer tabloid to pay $150,000 to Karen McDougal, a former Playboy model who claims she had an affair with Trump, in order to keep her from revealing damaging informatio­n. He said he also made an excessive campaign contributi­on by paying $130,000 to porn actress Stormy Daniels, whose real name is Stephanie Clifford, in order to prevent her from telling her story about having sex with Trump.

Crucially, Cohen said he committed both of the illegal acts “in coordinati­on with, and at the direction of, a candidate for federal office.” Who else is at risk? The hush-money arrangemen­t involves other former executives at the Trump Organizati­on, Trump’s company. Prosecutor­s say executives approved $420,000 in related payments to Cohen, the executive vice-president, and that one executive told an employee to falsely describe the expendi- tures as a legal “retainer.” The New York Times has reported that chief executive officer Allen Weisselber­g, a close Trump associate, had knowledge of the retainer arrangemen­t. Any legal problems for him would give Trump more problems. What is Trump claiming?

Trump argued on Twitter that Cohen had pleaded guilty to non-crimes: “Michael Cohen plead guilty to two counts of campaign finance violations that are not a crime.”

In a Fox News interview, he argued incorrectl­y that there was no crime committed because the payments “came from me” rather than from out of campaign funds. There are numerous campaign finance crimes that do not involve expenditur­es from campaign funds. And Trump twice raised the fact that Barack Obama’s 2008 campaign paid a $375,000 fine, and did not face charges, because of its own campaign finance violations. But those violations did not involve Obama himself, and they were over issues that were considered errors, not intentiona­l efforts to break the law. What’s next?

Mueller is known to be probing a wide variety of issues, including the possibilit­y that Trump has committed obstructio­n of justice. Cohen could help him.

Manafort faces a second trial in September. He could attempt to seek a reduction in his sentence, and avoid the trial, by deciding to give Mueller informatio­n. It is also possible that Trump could issue a presidenti­al pardon to Manafort, sparing him from prison but likely causing a political uproar.

Of course, it is possible that Trump could choose the nuclear option: fire Mueller and try to shut down the investigat­ion.

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 ?? DON EMMERT AFP/GETTY IMAGES ?? In Donald Trump’s view, Michael Cohen is a bad lawyer and Paul Manafort is “brave.”
DON EMMERT AFP/GETTY IMAGES In Donald Trump’s view, Michael Cohen is a bad lawyer and Paul Manafort is “brave.”

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