A bad day in court for his former associates could foreshadow hard days ahead for President Donald Trump. But it’s unlikely he’ll find himself in a courtroom facing criminal charges, at least while he’s president.
On Tuesday, Trump’s former personal lawyer and “fixer,” Michael Cohen, pleaded guilty to campaign-finance violations. Cohen said Trump directed him to arrange the payment of hush money to two women who claimed they had affairs with Trump, acknowledging the payments were made to influence the election.
Around the same time, a jury found former Trump campaign chairman Paul Manafort guilty of eight financial crimes unrelated to the campaign. It was the first trial victory for prosecutors in the office of special counsel Robert Mueller, whose investigation Trump has derided as a witch hunt.
Both cases have increased buzz about possible impeachment. But indictments are another matter. Legal experts generally agree that sitting presidents can’t be indicted.
Some questions and answers about the legal implications for Trump of the Cohen and Manafort cases:
Does Cohen’s guilty plea mean Trump violated the law?
Cohen said in a New York court that he made one payment “in coordination and at the direction of a candidate for federal office” and the other “under direction of the same candidate.” The amounts and dates all line up with the payments made to porn star Stormy Daniels and Playboy model Karen McDougal.
Prosecutors did not go as far as Cohen did in open court in pointing the finger at the president, saying Cohen acted “in coordination with a candidate or campaign for federal office for purposes of influencing the election.” Legal experts said there could be multiple reasons for government lawyers’ more cautious statements.
Daniel Petalas, former prosecutor in the Justice Department’s public integrity section, said the issue of whether Trump violated the law comes down to whether Trump “tried to influence an election, whether he knew and directed it and whether he knew it was improper.”
But Trump’s attorney Rudy Giuliani said in a statement: “There is no allegation of any wrongdoing against the President in the government’s charges against Mr. Cohen.”
Trump denied to reporters in April that he knew anything about Cohen’s payments to Daniels, though the explanations from the president and Giuliani have shifted multiples times since.
Does Cohen’s plea mean Trump could be forced to submit to questions?
Trump’s lawyers have been negotiating with Mueller about whether the president would submit to an interview as part of Mueller’s Russia investigation. Now Daniels’ attorney Michael Avenatti says he’ll renew efforts to get Trump to submit to a deposition in a lawsuit Daniels filed to invalidate a nondisclosure agreement she signed ahead of the 2016 election.
Avenatti tweeted that the Cohen pleas should “permit us to proceed with an expedited deposition of Trump under oath about what he knew, when he knew it, and what he did about it.”
Daniels’ case is currently on hold, but Avenatti said he’ll be looking to get that hold lifted.
The Supreme Court in 1997, ruling in a sexual harassment lawsuit brought by Paula Jones against President Bill Clinton, held that a sitting president could be made to answer questions as part of a lawsuit. But that ruling did not directly address whether a president could be subpoenaed to testify in a criminal investigation, a question the Supreme Court may have to confront if Mueller tries to compel Trump’s testimony in his probe.
If there is evidence of wrongdoing, can Trump be indicted?
The Justice Department’s Office of Legal Counsel, which provides legal advice and guidance to executive branch agencies, has held that a sitting president cannot be indicted.
Trump’s lawyers have said that Mueller plans to adhere to that guidance, though Mueller’s office has never independently confirmed that. There would presumably be no bar against charging a president after he or she leaves the White House.
Sol Wisenberg, who conducted grand jury questioning of Clinton as deputy independent counsel during the Whitewater investigation, said he still wanted to see more details of Cohen’s plea deal. But he said: “Obviously it’s not good for Trump. The stuff on Stormy Daniels is not good for Trump.”
“I’m assuming he’s not going to be indicted because he’s a sitting president,” Wisenberg said. “But it leads him closer to ultimate impeachment proceedings, particularly if the Democrats take back the House.”
How does Cohen’s plea relate to the Mueller investigation?
While the Manafort case was part of Mueller’s investigation, the Cohen case was not. It was handled by prosecutors in New York. Still, it could give Mueller a boost.
Laurie Levenson, a former federal prosecutor and professor at Loyola Law School in Los Angeles, argued that Cohen’s plea knocks back the argument that the investigations swirling around Trump are a “witch hunt,” as the president has called Mueller’s Russia investigation.
“No longer can you say Mueller is on a witch hunt when you have his own lawyer pleading guilty to things that were designed to impact the election,” she said.
Could Trump pardon himself?
Trump has already shown he’s not afraid to use his pardon power, particularly for those he has viewed as unfair victims of partisanship. He pardoned Joe Arpaio, the former Arizona sheriff who clashed with a judge on immigration, and I. Lewis “Scooter” Libby, a Bush administration official convicted of perjury and obstruction of justice in a leak case.
As for whether a president can pardon himself, not surprisingly, courts have never had to answer that question. Giuliani, Trump’s lawyer, has said it won’t come to that anyway.
“Pardoning himself would be unthinkable and probably lead to immediate impeachment,” Giuliani told NBC’s “Meet the Press” in June. “And he has no need to do it, he’s done nothing wrong.” Still, Giuliani argued that Trump “probably does” have the power to pardon himself.