Mueller’s Roadmap: Major Takeaways from Cohen and Manafort Filings

Federal prosecutors in the Southern District of New York (SDNY) and from the Office of Special Counsel Robert Mueller filed significant documents in the criminal cases of President Donald Trump’s former personal attorney and fixer Michael Cohen and former Trump campaign chairman Paul Manafort. In D.C, the court. released a redacted submission outlining the grounds for Mueller’s determination that Manafort had breached his plea agreement. In New York, both the SDNY and Special Counsel filed documents related to Cohen’s sentencing.

Here are eight major takeaways from what these developments:

1. SDNY prosecutors named the President of the United States as a direct participant, if not the principal, in felonies

“The Department of Justice today, in the most explicit terms, said the President of the United States committed two felonies. Just said it. Came out and said it. Campaign violations. … It’s just plain as day,” Jeffrey Toobin said live on CNN. Toobin is basically right, and that’s the legal, political, and ethical bombshell of this day in history.

More specifically, the flagship U.S. Attorney’s office for the Southern District of New York walked right up to the line of accusing Donald Trump (identified as “Individual 1”) in a federal court filing of complicity and conspiracy in Cohen’s felony campaign finance crimes related to the payment of hush money to women to squash sex stories. Specifically, the SDNY states:

During the campaign, Cohen played a central role in two similar schemes to purchase the rights to stories – each from women who claimed to have had an affair with Individual-1 – so as to suppress the stories and thereby prevent them from influencing the election. With respect to both payments, Cohen acted with the intent to influence the 2016 presidential election. Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments. In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1. As a result of Cohen’s actions, neither woman spoke to the press prior to the election.

(emphasis added and presentence report citations omitted).

Trump is no mere accomplice, but is alleged to have directed the criminal activity. And this is no minor crime. The SDNY submitted to the court that “the nature and seriousness of the offenses” should “weigh heavily in favor of a substantial term of imprisonment.” And as though they were speaking about Trump himself, the prosecutors state that the “two campaign finance crimes on the eve of the 2016 election for President of the United States struck a blow to one of the core goals of the federal campaign finance laws: transparency,” “deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election,” and should be met with a stiff penalty “to counter the public cynicism that may arise when individuals like Cohen act as if the political process belongs to the rich and powerful.” That language is not reserved for Cohen, but presumably applies to the individual who directed Cohen’s activities as well if not more so.

All that said, there’s an important footnote: something is still missing before being able to make claims as bold as Toobin’s, that is, before being able to say the Justice Department actually crossed the line of accusing the President of committing a felony. That’s the element of a knowing violation of the law.

Cohen had been charged with “knowingly and willfully” causing excessive campaign contributions to a candidate for President of the United States in violation of 52 U.S.C. §§ 30118(a) & 30109(d)(l)(A), and 18 U.S.C. § 2(b). However, a willful violation requires knowing wrongdoing, so prosecutors would have to demonstrate that someone in Trump’s shoes, like Cohen, knew what he was doing was illegal.

Notwithstanding the legal debate about a sitting president’s indictability, it won’t happen as a practical matter. Nonetheless, after these filings, Trump faces meaningful criminal exposure upon the end of his term in office. What’s more, the fact that these alleged crimes related to his election to office, they would clear a potential hurdle for impeachment purposes. That is, some impeachment scholars, like Cass Sunstein, take the view that the Impeachment Clause applies only to acts committed in office or in the course of getting elected. These allegations meet the Sunstein test for what falls inside the scope of impeachment, were the question ever to be considered by Congress.

2. Other Trump Campaign and Trump Organization officials may face criminal charges for the hush money scheme

The key allegation against the President also refers to “one or more members of the campaign,” which suggests more indictments for the hush money scheme may still be in the offing. This also raises the prospect that we may soon see the prosecution of the campaign itself as an organization — “United States vs. Trump Campaign” — even if a sitting president (United States vs. Donald J. Trump) cannot be indicted. Something similar holds true for other executives in the Trump Organization and the company itself. The SDNY memo states that executives engaged in a scheme to create fraudulent payments to reimburse Cohen for his payoffs for the two women. It states, for example, that “Executives of the Company agreed to reimburse Cohen … the Company then falsely accounted for these payments as ‘legal expenses.’ In fact, no such retainer agreement existed and these payments were not ‘legal expenses’ – Cohen in fact provided negligible legal services to Individual-1 or the Company in 2017.”

3. The Special Counsel ties Trump directly to possible Russia collusion

The Special Counsel’s sentencing memorandum for Cohen very deliberately tells the public that Trump himself was caught up in the connections to and embrace with Russia, and some of those actions were in fact the candidate’s idea. The Special Counsel’s memo says that it was Trump’s idea to initiate contact with the Kremlin in the early stages of the campaign, and that he tasked his fixer, Cohen, to begin that process as early as September 2015. This information should now inform how we think about other subsequent events in the Trump-Russia timeline. At least some Russian overtures should be seen as a potential second step (a receptive response) in the two side’s engagement, not the first step (an initial overture or invitation).

This is likely just the tip of the iceberg. Mueller specifically refers to “examples” of Cohen’s and Trump’s actions, indicating these instances are representative of a broader set of cases. Mueller’s brief states that Cohen “corrected other false and misleading statements that he had made concerning his outreach to and contacts with Russian officials during the course of the campaign. For example, in a radio interview ….” And the brief states that: “the defendant provided information about his own contacts with Russian interests during the campaign and discussions with others in the course of making those contacts. For example, and as described above, the defendant provided a detailed account of his involvement and the involvement of others in the Moscow Project …”

4. Russian contacts began during the GOP Primary

As one of us has written previously, a key question is not just whether the Russians interfered in the GOP primary, but whether any collusion with the Trump campaign began back then. Mueller’s sentencing memorandum for Cohen adds significant evidence to suggest that’s what happened. Two of the examples Mueller chooses to include in the document occurred early in the primaries. By September 2015, Cohen publicly suggested a meeting between Putin and Trump after having “conferred with Individual 1 about contacting the Russian government before reaching out to gauge Russia’s interest in such a meeting.” In November 2015, a Russian national who identified themselves as a “trusted person” in the Russian Federation reached out to Cohen proposing such a meeting with Putin and offering the campaign support in the form of “political synergy.” The only reason Cohen declined is because already by then he considered Felix Sater, with whom he was arrange the Moscow Trump Tower project, provided sufficient “connections to the Russian government.”

What’s more, these interactions may also shed light on other aspects of the publicly known timeline. First, when senior campaign officials appeared to brush away some overtures by Russian agents (think: Kushner at the time of the NRA convention), it may have been because they considered other established connections with the Kremlin sufficient. Second, these earlier interactions with Trump and Cohen may also shed light on Rob Goldstone’s email to Donald Trump Jr. In the first email on June 3, 2016, Goldstone’s message appeared to pick up mid-conversation and assume Trump Jr. already knew about Kremlin efforts to help Trump get elected. “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump,” Goldstone wrote.

5. The Special Counsel targets many Manafort lies but is silent on the infamous Trump Tower meeting with Russians

In the Special Counsel’s memorandum alleging Manafort’s breach of the plea agreement, there’s a conspicuous silence on whether Manafort lied about direct Russia-Trump Campaign activities. Did Manafort lie, for example, about whether Trump had advance knowledge of the June 9 meeting with the Russians? The memo does not say.

Despite White House press secretary Sarah Huckabee Sanders boasting that the Manafort filing “says absolutely nothing about the President,” that may actually be quite worrisome for Trump. The president may need to be most concerned that Manafort was candid about what he knew of Russia-Trump Campaign activities. Put another way, Manafort may have testified before the grand jury that Trump did know about the nature of the Trump Tower meeting in real time.

That said, we do not read too much into the absence of allegations. Mueller may have decided to focus on a tidy set of slam dunk examples in which Manafort not only clearly lied, but even acknowledged the falsehood. These cases were so overwhelming that the Special Counsel wrote, “In none of the communications with Manafort’s counsel was any factual or legal argument made as to why the government’s assessment of Manafort’s credibility was erroneous…”

6. Some potential hints of obstruction and suborning perjury

The Special Counsel documents on Manafort and Cohen also contain hints of obstruction of justice and suborning perjury. Why was Manafort secretly in contact with Administration officials, and as late as May 26, 2018, long after his indictment and being confined to his home under court order? Why did, as the Special Counsel accuses  “Manafort authorize[] a person to speak with an Administration official on Manafort’s behalf”? And why did Manafort deny all this to federal investigators after signing the plea agreement?

For his part, Cohen implicated members of the White House and Trump’s lawyers in his sentencing memorandum submitted last week. The brief on behalf of Cohen stated, “in the weeks during which his [Cohen’s] then counsel prepared his written response to the Congressional Committees, Michael remained in close and regular contact with White House-based staff and legal counsel to Client-1 [Trump].” This statement clearly suggested those individuals were in the loop when Cohen prepared his false written testimony. Now, the Special Counsel’s brief added to that picture. It states, “Cohen provided relevant and useful information concerning his contacts with persons connected to the White House during the 2017–2018 time period” and “Cohen described the circumstances of preparing and circulating his response to the congressional inquiries, while continuing to accept responsibility for the false statements contained within it.” If indeed White House staff and any of Trump’s legal counsel were involved in preparing or encouraging Cohen’s false testimony to Congress, they should be worried about their personal liability. Mueller may well have the evidence to prove it.

7. Mueller’s M.O.: What he’ll do with lying to the public (and lies in writing)

The Special Counsel’s documents on Manfort and Cohen provide insight into Mueller’s approach to these cases.

In terms of perjury and false statements, Mueller seizes on fact that Cohen lies were in written testimony rather than arising “spontaneously from a line of examination or heated colloquy.” That’s a danger sign for people like Trump, who may have thought they had greater safety in written responses to Mueller, and people like Roger Stone, whose apparent lies to Congress are on the face of his written testimony.

Another important insight is how Mueller seizes on Cohen’s lies made to the public.

First, Mueller’s theory of the case recognizes that public statements are methods of communication with other witnesses. That’s important for potential conspiracies to commit perjury or otherwise obstruct justice. This also increases the likelihood that Mueller will regard public statements by President Trump and his lawyers as signals to other witnesses–such as publicly dangling pardons and favoring the “strength” of uncooperative witnesses.

Second, Mueller considers lies to the public can be an attempt to undermine the investigation. The memo states, “By publicly presenting this false narrative, the defendant deliberately shifted the timeline of what had occurred in the hopes of limiting the investigations into possible Russian interference in the 2016 U.S. presidential election.” That sounds awfully similar to the creation of a cover story about the June 9 Trump Tower meeting, which the President himself reportedly directed from aboard Airforce One.

Third, Mueller considers Cohen’s false statements to be even more significant because he “amplified” them by “by releasing and repeating his lies to the public.” That approach spells trouble for several Trump campaign associates including Roger Stone, Donald Trump Jr., Erik Prince, and Michael Caputo.

8. Why Cohen was more forthcoming with Mueller than SDNY, and SDNY wants him to serve a significant prison sentence

Back in August, Cohen agreed to plead guilty but did so without a cooperation agreement. At the time, Alex Whiting and Andy Wright puzzled over that sequence of events, wondering whether the non-agreement was driven by Cohen’s refusal to agree to cooperate, or by SDNY’s lack of interest — or confidence — in his testimony. In this filing SDNY argues the prosecutors wanted Cohen to be a “traditional cooperating witness” but Cohen made an “affirmative decision not to become one.” Per SDNY, Cohen had valuable information: “Had Cohen actually cooperated, it could have been fruitful: He did provide what could have been useful information about matters relating to ongoing investigations being carried out by this Office.”

In contrast, Cohen provided more fulsome information to the Special Counsel, which SDNY suggests deserves a variance from the normal sentencing guidelines range but not the kind of substantial assistance reduction Michael Flynn received. Unlike SDNY, Mueller describes Cohen’s assistance as “substantial.”

Why the discrepancy? One theory is that Mueller’s investigation is focused on the Trump orbit, whereas the SDNY is much more focused on Cohen’s. Cohen may be reticent to cooperate fully with SDNY because it might implicate his own family and non-Trump business associates.

* * *

The SDNY and Mueller’s filings — rather than a political communications operation and media strategy — speak to the law and the facts. Within the procedural rules of these criminal cases, the sequence and nature of the information they provide drip with intention. As Preet Bharara discussed Friday night, there was no apparent need for the SDNY to mention that Cohen acted “in coordination with and at the direction of” the President.” But the SDNY did, and speaks volumes. This week we have seen a tale of three witnesses: Michael Flynn received a no-sentence recommendation for substantial cooperation in several ongoing investigations; Cohen got an SDNY recommendation of a “substantial” period of incarceration for his half-hearted cooperation, and Manafort got not just the book, but the whole library, thrown at him by prosecutors for allegedly breaking his plea agreement. The message there is not subtle either. And other witnesses and potential targets of these wide-ranging investigations will surely hear it.

[Editor’s note: Readers may also be interested in Kate Brannen & Ryan Goodman’s “Major Takeaways from Michael Cohen’s Plea on Trump Moscow Project” (Nov. 29, 2018)]

Photo credit: Michael Cohen exits federal court, Nov. 29, 2018 (Drew Angerer/Getty Images 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.

Andy Wright

Senior Fellow and Founding Editor of Just Security, former Associate Counsel to the President in the White House Counsel’s Office. You can follow him on Twitter @AndyMcCanse.