Will Donald Trump be fighting the 2020 election to avoid jail time?

The legal troubles faced by Trump’s former fixer Michael Cohen could soon come to haunt Trump too.

Sign Up

Get the New Statesman's Morning Call email.

Speaking on Sunday to CBS News, the Democratic congressman Adam Schiff, a 58-year-old federal prosecutor who will likely become the next chairman of the house intelligence committee, observed that:

“There’s a very real prospect that on the day Donald Trump leaves office, the Justice Department may indict him. That he may be the first president in quite some time to face the very real prospect of jail time.”

The legal pressure on the president mounted on Friday, when the Special Counsel Robert Mueller and the Southern District of New York both released sentencing memos for Trump’s former lawyer and fixer Michael Cohen, who has been charged with lying to Congress about Trump’s Russian business interests, breaking campaign finance laws by paying hush money to women who say they had affairs with Trump, financial crimes and tax evasion.

The memo released by Mueller’s office offers a clear indication of how the Special Counsel is interpreting the fact Trump and his team continued negotiations over building a Trump Tower in Moscow until at least June 2016, when Trump was on the cusp of winning the Republican nomination:

“If the project was completed, the Company [the Trump organisation] could have received millions of dollars from Russian licensing fees and other revenues. The fact that Cohen continued to work on the project and discuss it with individual 1 [Donald Trump] well into the campaign was material to the ongoing congressional and SCO [Special Counsel] investigations, particularly because it occurred at a time of sustained efforts by the Russian government to interfere with the US presidential election. Similarly, it was material that Cohen, during the campaign, had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia.”

In other words, this doesn’t in itself prove that Trump was colluding with the Russians in interfering with the 2016 elections – but it does look pretty bad that he was negotiating a multi-million dollar deal with senior Russian officials while also campaigning for the Republican nomination.

To make matters worse for Trump, Cohen told the Special Counsel that he was approached by a Russian individual in November 2015 who said he could offer “political synergy” and “synergy on a government level” and tried repeatedly to set up a meeting between Trump and the Russian president Vladimir Putin. It’s not clear exactly what “synergy” is meant to mean in this context, though it sounds a lot like a synonym for collusion.

Cohen didn’t take up this Russian individual’s offer, not because he objected to the idea of a candidate accepting “political synergy” from a hostile nation in the run-up to a presidential election, but rather because he thought his other Russian contacts were good enough, the memo adds in a footnote.

It also hints at the extent of Trump’s involvement in Cohen’s negotiations with Russian officials. It explains that Cohen admitted to the Special Counsel that he had conferred with Trump before contacting Russian officials to set up a meeting between Putin and Trump during the 2015 UN General Assembly. This suggests that Cohen wasn’t going rogue, but probably routinely sought Trump’s clearance before contacting Russian officials.

According to the memo, Cohen contributed to the investigation in four ways: by providing information about his own contact with Russian officials and his discussions about that contact (ie. giving an indication of how much Trump knew and approved of this contact), by providing “useful information concerning certain discrete Russia-related matters core to the investigation”, by sharing details of his ongoing contact with White House officials in 2017 and 2018 and by describing how he prepared his congressional statements (ie. giving an indication of whether or not he was directed by Trump or other senior White House officials to lie to Congress about Trump’s Russia dealings.)

We don’t know the full details of what Cohen shared with the Special Counsel, but all signs suggest that it doesn’t reflect well on Trump at all.

Meanwhile, in the Southern District of New York sentencing memo, it is emphasised again that Cohen broke campaign finance laws “in coordination with and at the direction of” President Trump.

What’s noteworthy in the filing is how New York prosecutors are characterising these illegal payments to women. They argue:

“Cohen’s commission of 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. While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows. He did so by orchestrating secret and illegal payments to silence two women who otherwise would have made public their alleged extramarital affairs with Individual-1 [Donald Trump]. In the process, Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election.

It is this type of harm that Congress sought to prevent when it imposed limits on individual contributions to candidates. To promote transparency and prevent wealthy individuals like Cohen from circumventing these limits, Congress prohibited individuals from making expenditures on behalf of and coordinated with candidates. Cohen clouded a process that Congress has painstakingly sought to keep transparent. The sentence imposed should reflect the seriousness of Cohen’s brazen violations of the election laws and attempt to counter the public cynicism that may arise when individuals like Cohen act as if the political process belongs to the rich and powerful.

If Cohen sought to “influence the election from the shadows” and committed “brazen violations to election laws” then so, too, did Trump. As Schiff pointed out in his CBS interview, all of the arguments made in favour of giving Cohen jail time for these offences could equally be applied to Trump.

Trump is unlikely to be indicted while in office. His breaking of election laws alone could be an impeachable offence, but Schiff made clear in a recent interview with the Economist that he wouldn’t want to pull the trigger too quickly. “There’s only one thing worse than putting the country through the wrenching experience of an impeachment, and that’s a failed impeachment,” he told that magazine.

The New York Times reports that New York prosecutors have already looked at the statute of limitations for campaign finance violations and determined that Trump could be charged after leaving office – and as the former federal prosecutor Renato Mariotti remarked on Twitter: “Why would the SDNY federal prosecutors spend time determining whether they could indict Trump after he leaves office if they didn’t think they could possibly obtain sufficient evidence to convict him?”

While many might feel gleeful at the prospect putting Trump behind bars, as Eric Levitz points out inNew York Magazine, “there is a significant chance that in 2020, Donald Trump will be running for a second-term — and from the law — simultaneously. And if that proves to be the case, the consequences for American political life could be dire.”

Even without the threat of incarceration hanging over him, Muellers investigators are uncovering the extent to which Trump was willing to play dirty to win power. Should Trump be fighting the next election to avoid jail, there is no underestimating his potential to wreak chaos on American democracy.

Sophie McBain is North America correspondent for the New Statesman. She was previously an assistant editor at the New Statesman.