When President Donald Trump’s personal lawyer Michael Cohen pleaded guilty this past Tuesday to two counts of breaking campaign finance law, to wit: by securing the payment of hush money to porn star Stormy Daniels and Playboy Playmate Karen Macdougal during the home stretch of the 2016 presidential campaign, his statements under oath directly implicated the president as an unindicted co-conspirator.
My political opposition to President Trump aside, the lawyer in me, one who once served as a prosecutor and for the past 17 years, having defended thousands of criminal cases in state and federal courts, I affirm from the outset that Cohen’s allocution or statement under oath provides probable cause that Trump committed the requisite constitutional “high crimes and misdemeanors” to warrant impeachment.
While Trump has done his level best to portray Special Counsel Bob Mueller’s probe as a witch-hunt, the simple fact remains that the audio-tape that Cohen released this summer was clear and convincing evidence that Trump knew what the payments were for and agreed to the same. By so doing, that agreement meets the legal definition of a “conspiracy,” one that if Trump was a private citizen and not the president, would have found him being arraigned in Federal District Court alongside his longtime lawyer.
Trump was not indicted because there remains somewhat of a legal process mystery as to whether a sitting president can be indicted or must face charges through the impeachment process; the Constitution is not explicit on this point and over the past forty years, the arguments for and against such indictments have raged when two presidents, the late Richard Nixon and Bill Clinton, were alleged to have committed high crimes and misdemeanors for the Watergate and Monica Lewinsky affairs, respectively. Nixon, as we all remember, resigned before the issue was fleshed out, while Clinton was ultimately impeached in the U.S. House of Representatives, but was acquitted in the U.S. Senate and thus, not removed from office.
Cognizant of this history, and further cognizant that the standard for indictment (and to the same end impeachment) is very low (remember NY Judge Sol Wachtler’s quote in Tom Wolfe’s Bonfire of the Vanities that “you can get a grand jury to indict a ham sandwich”), Trump should be impeached.
The question of will he be impeached is salient, and that determination very well could hinge upon the outcome of the 2018 mid-term election. Despite the oft stated averments about how America is a nation of laws of which no person is too great to not be held accountable, the truth is that such is a form of fiction or legal sophistry that has duped the masses of Americans into believing that the rules are equally applied without respect to race, class, gender, religion and the like. Such is patently false; the rich and powerful in America, be they Republicans or Democrats, will overlook the rule of law to protect those that they deem worthy of protecting.
20 years ago, I was a young state prosecutor who each day during the Clinton impeachment proceedings, would listen to events streamed live from the Senate chamber. I was a young and idealistic Republican at the time and while fond of the economic prosperity under Clinton, I was mortified at the idea that Clinton had lied under oath about the nature of his relationship with Lewinsky. While there certainly was probable cause to indict/impeach him, I received a poignant lesson in class based politics that winter when the requisite super majority of votes in the Senate–67–fell way short of removing Clinton from office. In fact, only 45 Republican Senators voted to convict Clinton, while 55–including each Democrat–voted to acquit.
Indeed, the political aspect of weighing high crimes, misdemeanors and even felonies is not lost upon me in the least bit. 20 years ago, Republican Sen. Lindsay Graham said as follows about Clinton: “Today, Republicans, with a small handful of Democrats, will vote to impeach President Clinton. Why? Because we believe he committed crimes resulting in cheating our legal system. We believe he lied under oath numerous times, that he tampered with evidence, that he conspired to present false testimony to a court of law. We believe he assaulted our legal system in every way. Let it be said that any president who cheats our institutions shall be impeached.”
Graham was outraged that Clinton lied about having an affair in office, but where does Graham stand today with concrete evidence that the current president, Mr. Trump, has lied to the American people about paying hush money to conceal affairs and lying on campaign finance disclosure forms (perjury) about the nature of the payments? Graham has urged caution thus far and the need to gather more facts. But the truth of the matter is that Graham and his colleagues on both sides of the aisle in Congress are driven not by whether the letter of the law was broken, but by concerns about their particular team maintaining the political advantage in the executive and legislative branches of government.
The political double standard cuts both ways, mind you, as evidenced by the fact that 20 years ago, one of my favorite Democratic representatives, Maxine Waters, blasted the Clinton impeachment proceedings a “coup d’etat.” Today, Waters is at the vanguard of calling for Trump’s impeachment.
As of this morning, President Trump and his surrogates are seeking to discredit lawyer Michael Cohen by casting him as a liar, much like Clinton supporters strove to paint Lewinsky as a liar two decades ago. But just as Lewinsky kept a blue dress with Clinton’s DNA on it that proved that she was not lying, Cohen’s tape discussing hush payments with Trump proves that he is not lying, either. What sense does it make for a lawyer to pay money to two women that he did not sleep with? The idea that those payments were made without Trump’s direction defies all logic.
Which brings me to another critical point, which is that Cohen already is facing five years in prison for his criminal acts, and it is extremely unlikely that a silk stocking type like him would want to tag on an additional five years worth of prison exposure by lying during his allocution to the judge.
In conclusion, while I harbor no doubts that Trump conspired to deceive the FEC about the nature of the hush payments to silence his paramours, and while I believe without question that he deserves impeachment for such criminal acts, I am also fully aware that even if he is impeached by a future Congress, that the likelihood that 67 Senators will vote to convict and remove him are extraordinarily slim. For Trump opponents dreaming that he will be removed prior to 2020, please don’t bet the farm on that result. For those assuming that he may follow Richard Nixon’s lead and resign, don’t bank on that, either, as Trump does not strike me as the kind of man who will gracefully bow out, particularly when considering that 48 hours after Cohen’s plea, the president is still convinced that what Cohen did was not even a criminal act. While he may not be removed or resign, the fact remains that we, the people, must ask why the laws that apply to the majority do not often apply to the minority of powerful politicians? Stay tuned…