On 21 August, Donald Trump’s former fixer Michael Cohen said he acted “at the direction of and in coordination with” the president when he broke campaign finance laws by paying to silence two women who say they had affairs with Trump.
In court in Manhattan, he pleaded guilty to tax evasion, bank fraud and making illegal campaign contributions. Almost simultaneously, a court in Virginia found Trump’s former campaign manager Paul Manafort guilty of financial crime.
The New Statesman spoke to Sara Kropf, an experienced lawyer specialised in white-collar crime based in Washington DC, about these cases and the legal and political implications for the president.
She said that investigators are moving “fast and aggressively”, and that they appear to be closing in on the president by investigating those closest to him. Although Trump is unlikely to be charged with breaking campaign finance laws while president, the statute of limitations means he could face criminal charges should he leave office after one term.
Kropf also said it looks likely that Cohen’s team have struck an agreement with prosecutors for leniency in exchange for his cooperation on the Russia investigation. Having served as Trump’s fixer for over a decade, Cohen is likely to possess intimate knowledge of any links between the president and Russia.
NS: Cohen pleaded guilty to acting “at the direction of and in coordination with” Donald Trump to commit a crime. What are the legal implications for Trump?
Sara Kropf: Cohen has essentially admitted that he conspired with President Trump to commit campaign violations, which is a federal crime. The government still has to prove conspiracy against the president, it’s not as though it’s a done deal, and no doubt President Trump will have a different view of the purpose of the payments [to Stormy Daniels and Karen McDougal]. He might say the payments were for keeping the affairs from his wife, rather than keeping them from the public to benefit the campaign.
But it’s a very big deal to have a co-conspirator plead guilty and implicate someone else. That is the most common way that federal prosecutors prove a conspiracy case.
In terms of anyone pressing charges against Trump on the basis of Cohen’s guilty plea, am I correct in understanding that because he is the president, Trump is pretty much the only person in America who wouldn’t be directly charged as a result of such a plea?
That’s right. There’s a Department of Justice memo that apparently lays out the legal argument that a sitting president cannot be charged with a crime. Personally, I think that it’s unlikely that the Special Counsel or a US attorney’s office somewhere would actually decide to charge the president and have that legal issue decided by a court.
However, the statute of limitations for almost all federal offences is five years. So if Donald Trump does not win re-election and he’s not pardoned by the new president or anything like that, in theory, once he’s no longer the sitting president, a federal prosecutor could charge him with a crime.
The judge said that Cohen is facing a maximum sentence of 65 years, what do you think the actual sentence might be and what could influence how he’s sentenced?
The sentencing range that the government and Cohen’s lawyers agreed to was somewhere between 46 months and 63 months. There’s a couple of things that happen before the sentencing. One is that the probation office in the Southern District of New York will conduct an extensive investigation and issue what’s called a presentence report. That report is sealed so it won’t be publicly available. But the probation office will calculate a sentencing range as well. And the court will take that calculation into account, along with the range in the plea agreement.
It’s very likely that Cohen will be sentenced within the range that they have identified within the plea agreement. And it’s pretty unusual for the courts to go above that. The court has absolute discretion, however, and it can go below that range.
But what’s interesting here is that the plea agreement says that there will be no motion for what’s called a downward departure from the guidelines range they’ve agreed to. That’s somewhat unusual when someone is showing this amount of cooperation.
Yes, because there was talk beforehand that Cohen might try to reach an agreement for leniency in exchange for his cooperation. Does what you’re saying suggest they didn’t reach such a deal?
I think he reached an agreement, it’s just not an agreement that you must put in writing.
My educated guess is that the government had several other charges they could have brought against him. He cooperated, and they decided as a result of that cooperation to only charge him with the crimes that he plead guilty to.
Generally, what happens is you have your client agree to plead guilty, and then there’s what’s called a 5K letter from the government saying how much cooperation the defendant has provided and that gives the court a reason to depart downwards from the sentence. Cohen’s plea agreement says that there will not be any such 5K letter.
But there’s still one possibility to change his sentence based on his possible cooperation in the Russia investigation. There’s a Rule 35 motion. What that does is allows the government, usually within the first year after the sentence, to make a motion to the court to reduce the imposed sentence because of substantial assistance provided by the defendant after sentencing.
I think the language of the plea agreement would allow the government to make a Rule 35 motion in the future.
So I wonder if that’s the wriggle room they left open. If Cohen has information about the Russia investigation that’s helpful, then his lawyers will want to leverage that information for some advantage in sentencing. It’s unlikely that his lawyers would allow him to give up that valuable information without knowing that he could get credit for it in some way.
Rule 35 is one possible path to give him that “credit” later in time without having to admit now that he’s getting that credit.
So a Rule 35 motion would be the way for his sentence to be reduced if he cooperates with special counsel Robert Mueller in the Russia investigation?
Exactly. Another possibility is that the government has other charges that they could bring against him and they’re waiting. I’m speculating here, but they could just be waiting to bring other charges to see how much he cooperates in the Russia investigation. And as the public, you have no insight into those negotiations. Those are negotiations between lawyers for the defence and lawyers for the government.
There is a lot of behind-the-scenes manoeuvering good white-collar lawyers can do – and Cohen has very good lawyers. So even if the cooperation may not be revealed in the public documents there’s definitely ways you can take that into account and your client can get credit for it.
You’ve partly answered this, but why else might Cohen have pleaded guilty now rather than fight these charges in court?
There’s a lot of reasons clients plead guilty, one is that he and his lawyers might have recognised that they would lose if they fought the charges at trial. Generally if you wait and go to trial and then are sentenced for the same exact crimes you could have pleaded guilty to, the sentencing after a trial will be a much more severe penalty.
Some people call that the “trial penalty”, and it can be a severe one. It’s risky to face a more serious penalty after trial. That’s one reason people plead guilty in situations like this one.
Yesterday, Trump’s former campaign manager Paul Manafort was also found guilty of eight counts of financial crime. What are the implications for Trump?
I am not sure there are any direct ramifications. Obviously, there are the political ramifications. At least as I understand, none of the charges against Manafort were related to or connected to President Trump. It was his own tax fraud and his own bank fraud that formed the charges, and there didn’t seem to be any evidence that Manafort’s conduct was directed by President Trump.
It affects President Trump politically: his argument that the Russia investigation is a “witch hunt” becomes a little weaker when you see a federal jury finding Manafort guilty on at least eight counts.
Yes, it’s a bad day for Trump when his campaign chairman and personal lawyer are found guilty of fraud. What kind of picture is this building of the Trump campaign and Trump organisation…
It was a very difficult day for them, I’m sure. But the Cohen plea and his statements in court during the plea hearing are very damaging to President Trump. If the prosecutors are circling around President Trump and looking for evidence that he committed a crime, Cohen gives them evidence of that.
Campaign finance charges are relatively minor offenses in the whole scheme of things. Certainly, sometimes prosecutors bring federal charges for campaign finance fraud, but they are not usually the cornerstone of a big case. Yet here they are, because of who Michael Cohen implicated in those charges.
What are you going to be going to be looking for next in terms of Trump’s legal predicament?
There are so many different directions it could go in. I would anticipate that the government is already looking into the National Enquirer for its role in campaign finance violations.
Usually the way these white-collar criminal cases work is the prosecutors put pressure on people or entities around their main target or someone who they believe has committed a crime. I would anticipate the prosecutors will put pressure on the Trump organisation for its possible role in campaign finance violations, and on the National Enquirer. When you put on enough pressure, it’s easy to see how someone else may implicate the president. But that’s just a guess about what could be happening.
It’s a process. People sometimes say that Mueller is moving slowly, but this is moving unbelievably fast for such a complex investigation. I’ve had white-collar cases where I’m working for two, two-and-a-half, three years before my client is even charged and those cases are nowhere near as wide-ranging or as complex as this one. This investigation is moving fast and aggressively.
I’d anticipate that what Cohen said will become like ripples in a pond. So: Cohen says potentially the National Enquirer did something wrong, and the government thinks: “let’s investigate them.” He says potentially the Trump organisation did something wrong, and the government thinks “let’s investigate them too.” Is there someone in particular at the Trump organisation who did something wrong. Is it the CEO? Who approved the payments? They will start looking at those people as well.
In a sense, the circles of people and entities being investigated get broader, but it results in tightening the circle around the primary target, which appears to be the president.
And if they’re going to look at the Trump organisation next, they could be looking at members of Trump’s family…
To be clear, usually prosecutors do not look at family members unless there’s some suggestion the family members are actually involved.
I’d anticipate that they have already subpoenaed the Trump organisation, the National Enquirer. That the government has already demanded the documents for related to these payments.
Is there anything else you think is really important to note at this stage in relation to the Cohen and Manafort cases?
I don’t think so. Candidly, I feel for Michael Cohen. I may have politics different than his client, but I’ve represented a lot of clients in Michael Cohen’s position and it’s a difficult day no matter who it is and what they’ve done. It’s hard to stand up in court and plead guilty, quite apart from the national media attention. It was a difficult day for him, I’m sure.
His sentencing is scheduled for 12 December right now, and it would be interesting to see if that date sticks. If the sentencing hearing gets moved, or keeps getting moved, then that can suggest that there are still negotiations going on, perhaps some additional cooperation.
(The interview has been condensed and edited for clarity.)