The 40-page sentencing memo filed by the U.S. Attorney’s Office for the Southern District of New York for former Trump personal attorney Michael Cohen is the basis for an indictment against the president, according to Andrew McCarthy.
McCarthy believes the charges will be for violating campaign finance laws. It’s alleged that Cohen and Trump paid off two women to hide their sexual liaisons with Trump during the 2016 campaign. The violation occurred when Cohen made the payments and cooked the books to hide them. That’s fraud and Cohen will go to jail for it.
As McCarthy points out, the prosecutors have had Trump in their sights from the beginning:
But when Cohen pleaded guilty in August, prosecutors induced him to make an extraordinary statement in open court: the payments to the women were made “in coordination with and at the direction of” the candidate for federal office – Donald Trump.
Prosecutors would not have done this if the president was not on their radar screen. Indeed, if the president was not implicated, I suspect they would not have prosecuted Cohen for campaign finance violations at all. Those charges had a negligible impact on the jail time Cohen faces, which is driven by the more serious offenses of tax and financial institution fraud, involving millions of dollars.
Trump has denied he had sex with the women as well as denying any payoff. But why indict Trump when violations like this are usually handled administratively and rarely rise to the level of a crime?
Moreover, campaign finance infractions are often settled by payment of an administrative fine, not turned into felony prosecutions. To be sure, federal prosecutors in New York City have charged them as felonies before – most notably in 2014 against Dinesh D’Souza, whom Trump later pardoned.
In marked contrast, though, when it was discovered that Barack Obama’s 2008 presidential campaign was guilty of violations involving nearly $2 million – an amount that dwarfs the $280,000 in Cohen’s case – the Obama Justice Department decided not to prosecute. Instead, the matter was quietly disposed of by a $375,000 fine by the Federal Election Commission.
The sticking point is Cohen’s efforts to conceal the payments from the FEC. The prosecutors will allege that Trump was involved in that process.
The sentencing memo for Cohen argues that the hush money payments were not merely unreported. It states that Cohen and the Trump organization – the president’s company – went to great lengths to conceal them by fraudulent bookkeeping.
Equally significantly, Cohen was not charged with merely making illegal donations. He was charged in the first campaign finance count with causing a company to make illegal donations.
That company was the National Enquirer, which bought Karen McDougal’s story for $150,000 and then buried it at Cohen’s request. There was apparently a promise to repay the company — a promise that was never kept.
Throughout the memo is the suggestion that Trump knew what Cohen was doing and ordered him to do it. Cohen has already admitted lying to Congress so the question of his credibility in telling prosecutors that Trump was in on the payoff scheme remains open.
Trump is not without a defense in this case and it’s no slam dunk. Plus, Justice Department guidance states that a sitting president cannot be indicted. There is much debate over that point — a question that could be tied up in court for years.
So Democrats have to ask themselves if they should impeach Donald Trump for violations of the campaign finance laws.
More importantly, do campaign finance violations qualify as “high crimes and misdemeanors,” which is the constitutional standard for impeachment? It is hard to imagine an infraction that the Justice Department often elects not to prosecute is sufficiently egregious to rise to that level, but the debate on this point between partisans would be intense.
To kick Trump out of office, Democrats are going to have to find 13 Republican senators to convict the president in a Senate trial. Over a violation of campaign finance laws? Really?
That’s why all this excitement and hysteria over the prosecution filing in the sentencing of Michael Cohen is partisans blowing smoke.