President Donald J. Trump, protected from criminal charges while in office, is now facing the prospect of indictment when he becomes a private citizen.
On Friday, federal prosecutors in New York accused Trump of a felony: violating campaign-finance laws with hush-money payments intended to skew the 2016 election. Specifically, they detailed how Trump’s lawyer and self-described fixer Michael Cohen bought the silence of two women who said they had sexual liaisons with Trump – and did so in order to help Trump win the presidency – with the president’s full knowledge.
Special counsel Robert S. Mueller III also filed documents showing that Cohen has told them that Trump was working on a real estate deal in Moscow potentially worth hundreds of millions of dollars “well into the campaign” – shortly before he secured the Republican nomination for president. Cohen was convicted of lying to Congress about these discussions with Trump.
The American people now know that Cohen “acted in coordination with and at the direction of Individual-1” – the president of the United States – in the illegal payments. Cohen was in “close and regular contact” with the White House and the president’s lawyers when he lied to Congress under oath about the Moscow project.
The Moscow project was “a lucrative business opportunity that sought, and likely required, the assistance of the Russian government,” Mueller’s prosecutors wrote. The negotiations “occurred at a time of sustained efforts by the Russian government to interfere with the U.S. presidential election.” Hours after the Russian hacks into the Democratic National Committee’s computers were first revealed in June 2016, the Moscow project discussions were suspended.
The FBI started out investigating the Russian operation that summer. By the fall, agents were looking at whether Americans aided and abetted the attack. Now we are witnessing an intelligence nightmare – a Russian operation to put Moscow’s preferred candidate in charge of the United States, and the fallout as he damages American democracy and attacks the North Atlantic alliance.
After 18 months as special counsel, Mueller has taken his investigation up to the first days after Trump was inaugurated. He and his fellow prosecutors have built a clear and convincing case that lies – not just political lies, but lies that constitute crimes – helped put Trump in power.
That case, along with Mueller’s continuing investigation of obstruction of justice by the president, may someday help put Citizen Trump in jeopardy of prosecution for a wide-ranging conspiracy to defraud the United States. That statute, the Supreme Court determined long ago, covers “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government.” That includes election laws, tax laws, and every manner of fraud.
Mueller and the FBI agents he commands have many months of work ahead. I suspect they are assembling the facts that one day will fill a sealed indictment – United States vs. Donald J. Trump – that could be unsealed by a federal judge when the president leaves office. Trump might try to obstruct Mueller. But, as I have written previously, he can’t fire the FBI.
Mueller now has proven that Cohen, along with former Trump campaign manager Paul Manafort and former Trump national security adviser Michael Flynn, broke the law by lying to the FBI and Congress about their contacts with Russians and people with ties to Russian intelligence. If they lied at the direction of Trump, the special counsel will find out.
These lies – and more still under Mueller’s microscope – have a common denominator. Each shows the hand of Vladimir Putin and his spy service. In 2016, Russians also approached Donald Trump Jr., and Trump’s senior adviser Jared Kushner, offering each in turn a tempting morsel – illegally obtained campaign dirt for the son, an illicit intelligence backchannel to Moscow for the son-in-law. These were classic intelligence approaches – “dangles” in spy argot – testing targets to see if they will bite. They did. Did they pick up the phone and call the FBI? They did not.
And then they appear to have misled members of Congress about it, under penalty of perjury. This means that members of the president’s family could be in legal peril.
Trump denies everything. “Totally clears the president. Thank you!” he tweeted as the new accusations were unsealed. That was yet another false statement from a leader who, according to Washington Post fact checkers, has misled the American people more than 6,400 times while in office, and continually and viciously attacks the special counsel, the FBI, and the Justice Department.
These attacks constitute a clear and present danger the president poses to the rule of law in the United States. The question now is whether U.S. institutions like Congress, the courts, and the criminal justice system can constrain him, and, if it comes to that, convict him for his assaults against the American political and legal system.
Come January, the Democrats in the newly-elected House of Representatives would do well to investigate Trump as no president ever has been investigated before. They may find that the better part of wisdom will be to put the matter of impeachment to the side unless the facts become so overwhelming that 20 Republicans will join 47 Democratic senators to reach the two-thirds majority needed to convict him of high crimes.
It almost came to that in 1974. President Richard M. Nixon was named as an unindicted co-conspirator in the Watergate cover-up. A bill of impeachment was prepared in the House. Nothing swayed Nixon’s core defenders in the Senate until the end. It took the “smoking gun tape” for the most rock-ribbed conservative in Washington, Senator Barry Goldwater, to go the White House to tell Nixon that his support in Congress had evaporated. It was time to go.
Where are the Goldwaters of yesteryear? Today, not a scintilla of evidence suggests that a single Republican senator stands against the president. Their silence makes them complicit – you might say co-conspirators – in a continuing attack against the laws and institutions of the United States.
Tim Weiner has won the Pulitzer Prize and the National Book Award for reporting and writing on American intelligence agencies.