Harry Litman, Opinion contributor
Published 8:32 a.m. ET Dec. 8, 2018 | Updated 10:23 a.m. ET Dec. 8, 2018
New court filings from special counsel Robert Mueller outline the levels of cooperation from Michael Cohen and Paul Manafort.
The court memos filed Friday by special counsel Robert Mueller and federal prosecutors from the Southern District of New York cast a deep shadow over Donald Trump’s presidency, and it is hard to see how Trump ever removes it, even assuming he survives to serve out his term.
The prosecutors’ revelations, in cases involving former Trump lawyer Michael Cohen, provide only a top-level, bland summary of the cases the prosecutors are assembling. They nevertheless disclose that the president, while a candidate, oversaw and directed a criminal scheme.
We already knew about the broad instances of criminal conduct that Mueller and the Southern District of New York (SDNY) are aggressively pursuing. And we knew that Cohen seemed to have a hand in two of them. One was the campaign finance scandal involving the payout of hush money to women with whom Trump allegedly had affairs. The other was the pursuit during the campaign of Trump’s long-held dream of a Trump Tower in Moscow, and the connection of that goal to possible easing or removal of sanctions on Russia.
The filings confirm Cohen’s involvement in those two schemes but, far more important, turn the focus to the famous Watergate inquiry: What did the president know and when did he know it? And judging from the memos, the answers are: 1) a lot and 2) at the time.
A baby step away from ‘knowingly and willfully’
The memo from the SDNY is scathing about Cohen (whom it fairly excoriates for a series of frauds) and, ultimately, the president. The memo flatly portrays Trump — or “Individual 1,” as it refers to Trump, which provides a faintly sinister gloss, as if Trump were in a lineup — as the mastermind of a criminal conspiracy to break campaign finance laws to influence the election. The prosecutors inform the court that “as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1.”
That is incendiary stuff, certainly no less an indictment of a president that the articles of impeachment against Nixon or the Starr Report on Clinton. Were it not for the apparent infinite tolerance of the Republican Senate for Trump’s misconduct, that charge itself would put the president in grave peril of impeachment and removal.
Arguably, the memo is a baby step away from the flat conclusion that the president is a felon: it does not specifically assert that Trump acted “knowingly and willfully,” the statutory standard. But it would be peculiar to try to suggest that the president both “directed” the scheme and acted innocently.
The SDNY’s memo also took pains to analyze the seriousness of the hush money deal that Trump oversaw. The prosecutors explain that the scheme deceived the voting public and robbed them of the transparency that the campaign finance laws are designed to protect. An unstated but inescapable corollary is that we can never know whether the criminal scheme contributed to Trump’s surprise razor-thin victory, or, not to mince words, whether he stole the election.
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Trump’s oversight of the campaign finance scandal, as combustible as it is, is less than half the story Friday’s memos detail of Trump’s deep involvement in conduct for which he has continually proclaimed ignorance. In some ways the more explosive charge concerns Trump’s personal involvement in outreach to the Russian government from early 2015 until well into the campaign.
Mueller’s seven-page memo credited Cohen with providing “useful information concerning certain discrete Russia-related matters core to its investigation,” as well as “relevant and useful information concerning his contacts with persons connected to the White House during the 2017–2018 time period.” A wealth of incriminating information involving the president likely is wrapped in this careful, bureaucratic formulation.
Mueller sketches out Cohen’s long course of work in support of what it calls the “Moscow Project,” Trump’s longstanding dream to erect a Trump Tower in Moscow. The building would have been the largest in Europe and the biggest deal of the dealmaker’s career.
Mueller informs the court that Cohen continued to work on the “highly lucrative” project and discuss it with “Individual 1” well into the campaign. It thus exposes as lies Trump’s repeated statements during the campaign. Cohen told the same lies to Congress — the offense which Mueller charged him with — and the contacts in 2017-2018 refer to his likely coordination of those lies with the high reaches of the Trump White House.
Trump enrichment wrapped in Russia ‘synergy’
I have argued elsewhere that the Moscow Project may implicate Trump in another, different criminal conspiracy, whose object was to ease sanctions on Russia in return for the green light to build the tower. But the more chilling and consequential part of the story is political, and the key memorable phrase is “political synergy,” which is what Cohen said a “trusted person” in the Russian Federation negotiating the deal offered the campaign.
Translation: the Moscow Project will bring you great wealth and enormous political power, which you can use in friendly ways to Russia. It is a recapitulation of the famous email by Cohen pal Felix Sater, who boasted that if the tower is built “Our boy can become president of the USA and we can engineer it.”
This, one suspects, is the enduring image of the Trump presidency, the cast shadow he will never remove. Trump’s signature project, as candidate and president, has been his own enrichment, and a main theme of the seemingly countless series of false and misleading claims (though they are being counted and stood at last reckoning in the 6,000 range) is to recast or conceal that goal in crass political terms that excite the 40% or so of the voting public that permit his tenuous grasp on power. That grasp may finally be loosening
Harry Litman, a former U.S. attorney and deputy assistant attorney general, practices law at Constantine Cannon and teaches at the University of California in San Diego and Los Angeles. Follow him on Twitter: @harrylitman