Cohen Implicates President Trump. What Do Prosecutors Do Now?

President Trump at Yeager Airport in Charleston, W.Va., on Tuesday. The Justice Department has long taken the position that sitting presidents are not subject to criminal prosecution.

WASHINGTON — When a lawyer tells prosecutors that his client directed him to commit a crime and pleads guilty to related crimes himself, an indictment of the client is very likely to follow.

The nation is about to find out whether there is an exception to that general rule when the client is the president of the United States.

Although there is no explicit prohibition in the Constitution against indicting a president, the Justice Department has long taken the position that sitting presidents are not subject to criminal prosecution.

That would suggest that the extraordinary admissions and accusations from Michael D. Cohen, President Trump’s former lawyer and fixer, will not result in criminal charges against Mr. Trump while he is in office. Mr. Cohen admitted to arranging payments to women to buy their silence about what they said were affairs with Mr. Trump, and he said Mr. Trump instructed him to pay the money to influence the election.

If all of that is true, Mr. Trump committed serious crimes.

“The plea, under oath, establishes that the president was a co-conspirator in the campaign violations to which Cohen pleaded guilty,” said Philip Allen Lacovara, who served as counsel to special prosecutors investigating President Richard M. Nixon’s role in the Watergate scandal.

A grand jury named Nixon an “unindicted co-conspirator,” and he later resigned in the face of mounting calls for his impeachment. Mr. Lacovara said Mr. Trump now also “is, technically, an unindicted co-conspirator.”

But under current Justice Department policy, Mr. Trump will not face prosecution at least until he leaves office.

A middle ground and second option urged by some legal experts is to allow prosecutors to obtain an indictment but defer further proceedings until the president leaves office.

The third option is impeachment, and prosecutors may present the evidence they have gathered to the House for its consideration.

Prosecutors in Manhattan, Mr. Lacovara said, “could seek permission from the deputy attorney general to do what we did in Watergate, which was to prepare a ‘road map’ of evidence bearing on the president’s culpability and send it to the House Judiciary Committee, which has jurisdiction over impeachment.”

Both the Manhattan prosecutors handling the Cohen case and Robert S. Mueller III, the special counsel investigating the Trump campaign’s ties with Russia, are bound by Justice Department policies banning the prosecution of sitting presidents.

The Supreme Court has never answered the question of whether sitting presidents can be prosecuted. The court did hear arguments on the issue in 1974 in a case in which it ordered Nixon to turn over tape recordings, but it did not resolve the matter.

The closest the Constitution has come to addressing the issue is in this passage, from Article I, Section 3: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

This much seems clear: The president and other federal officials may be prosecuted after they leave office.

However, “whether the Constitution allows indictment of a sitting president is debatable,” Brett M. Kavanaugh, who served on the staff of Ken Starr, the independent counsel who investigated President Bill Clinton and is now Mr. Trump’s Supreme Court nominee, wrote in a 1998 law review article. Mr. Kavanaugh, who sits on the United States Court of Appeals for the District of Columbia Circuit, also concluded that impeachment, not prosecution, was the right way to address a sitting president’s crimes.

The most prominent dissenter from the prevailing view is Eric M. Freedman, a law professor at Hofstra University and the author of a 1999 law review article that made the case for allowing criminal prosecution of incumbent presidents.

Professor Freedman wrote that granting sitting presidents immunity from prosecution was “inconsistent with the history, structure and underlying philosophy of our government, at odds with precedent and unjustified by practical considerations.”

He pointed out that other federal officials who are subject to impeachment, including judges, have been indicted while in office. Courts have rejected the argument that impeachment is the sole remedy for such officials.

Vice President Spiro T. Agnew, facing a grand jury investigation that would lead to his resignation in 1973, argued that he was immune from prosecution while in office. Impeachment, he said, was the only remedy.

The Justice Department, in a brief signed by Solicitor General Robert H. Bork, disagreed. But, though the question was not before the court, Mr. Bork added that “structural features of the Constitution” banned prosecutions of sitting presidents.



Michael Cohen: How Trump’s ‘Pit Bull’ Turned on Him

Michael D. Cohen, President Trump’s former lawyer, has pleaded guilty to violating federal campaign finance laws and has implicated Mr. Trump. Here is how their relationship has evolved.

Michael Cohen, President Trump’s former personal lawyer, went from this: “I’ll do anything to protect Mr. Trump.” “They say I’m Mr. Trump’s pit bull.” “I’ve stood by him, shoulder to shoulder.” To this: “Shock waves after President Trump’s former attorney Michael Cohen ...” “Michael Cohen, pleading guilty and implicating the president ...” “... possibly the worst day in Donald Trump’s presidency thus far.” So why did one of Trump’s most trusted advisers flip? Cohen was known for being Trump’s fixer and biggest defender. “If there’s an issue that relates to Mr. Trump that is of concern to him, it’s of course of concern to me. And I will use my legal skills within which to protect Mr. Trump to the best of my ability.” In April, the F.B.I. raided Cohen’s office after he became a target in special counsel Robert Mueller’s investigation. Trump was quick to come to Cohen’s defense. But once the investigation zeroed in on Cohen, the lawyer began to change his tune. “My wife, my daughter and my son have my first loyalty and always will. I put family and country first.” In July, Cohen released audio from a conversation with Donald Trump that he secretly recorded two months before the 2016 election. The two appear to be discussing payments to a former Playboy model who said she had an affair with Trump. [Cohen and Trump speaking] Here’s when things between Trump and Cohen began to publicly fall apart. “I expected something like this from Cohen, he’s been lying all week. I mean, for two — he’s been lying for years. There’s nobody that I know that knows him that hasn’t warned me that if his back is up against the wall, he will lie like crazy, because he’s lied all his life.” On Aug. 21, Cohen pleaded guilty to violating federal campaign finance laws and said President Trump directed him to make payments to two women during the 2016 campaign to avoid a potential sex scandal. Cohen’s lawyer suggested he knew more. “Mr. Cohen has knowledge on certain subjects that should be of interest to the special counsel and is more than happy to tell the special counsel all that he knows.” Trump tried to play down the momentous admission via Twitter.

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Michael D. Cohen, President Trump’s former lawyer, has pleaded guilty to violating federal campaign finance laws and has implicated Mr. Trump. Here is how their relationship has evolved.CreditCredit...Andres Kudacki for The New York Times

Since the president has the power to control federal prosecutions and to pardon federal offenses, Mr. Bork wrote, it would make no sense to allow the president to be prosecuted while he is in office: He should be prosecuted after he is removed from office and forfeits those powers. (Mr. Bork would go on to become a federal appeals court judge and an unsuccessful nominee to the Supreme Court.)

A year later, Leon Jaworski, a Watergate special prosecutor, took a less categorical position.

“It is an open and substantial question whether an incumbent president is subject to indictment,” he told the Supreme Court during his successful quest to obtain the White House recordings that contributed to Nixon’s resignation.

If Mr. Trump were to be treated as any other candidate — that is, not as president — he would likely face charges similar to those Senator John Edwards of North Carolina faced when he was indicted on a charge of suspected campaign finance violations in 2011. Those charges carried a combined maximum sentence of 30 years in jail and more than $1.5 million in fines.

“We’re talking potential years of jail time if he’s not the sitting president but was instead a civilian candidate,” said Paul S. Ryan, the vice president of policy and litigation at Common Cause, which filed campaign finance complaints based on the payments made to the women connected to Mr. Trump.

Mr. Edwards was not convicted — the jury acquitted him on one of the counts and could not come to a decision on the rest of them. But, Mr. Ryan said, prosecutors in New York “have a much stronger case for a variety of reasons against Team Trump.”

Mr. Edwards’s case — the first of its kind and therefore, the only actual template for the New York prosecutors — centered on some $1 million that two of his supporters provided to finance an elaborate scheme portraying Mr. Edwards’s mistress, Rielle Hunter, as the lover of Mr. Edwards’s aide Andrew Young.

The Edwards prosecutors argued that the $1 million that Mr. Edwards’s donors gave to the cover-up — which included a claim that Mr. Young was the father of the baby Ms. Hunter had with Mr. Edwards — was, in effect, a political donation.

To bring criminal charges, prosecutors had to show that the money was spent primarily to protect Mr. Edwards’s candidacy. In making his plea on Tuesday, Mr. Cohen said, outright, that his activity was to influence the election and that he did it at Mr. Trump’s direction.

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