It remains unclear whether special counsel Robert Mueller might find criminal charges of his own to lodge against President Donald Trump in the course of his investigation. | Susan Walsh/AP Photo
The presidency itself may amount to Donald Trump’s best legal defense.
If President Donald Trump is reelected in 2020, he will win more than another four years in the White House. He might also delay or even dodge any criminal prosecution.
A Friday Justice Department filing underscored the depth of the president’s potential legal exposure, after prosecutors found that Trump directed his then-personal lawyer, Michael Cohen, to silence two women ahead of the 2016 election who claimed to have had affairs with the businessman-turned-politician.Story Continued Below
Prosecutors say Cohen’s payments to the women constituted illegal campaign contributions, and some legal experts say Trump could be vulnerable to criminal charges as a result. But long-standing Justice Department protocol dating to the Watergate scandal holds that a sitting president can’t be prosecuted when he’s in office.
That would change as soon as Trump transitions from sitting president to former president.
“Once he’s out, he is like any other citizen and he can be indicted,” Trump’s personal lawyer, Rudy Giuliani, told POLITICO on Monday, while noting that he did not expect that outcome.That means the presidency itself may amount to Trump’s best legal defense.
While some legal scholars and defense attorneys with clients mired in the Russia probe argue that a sitting president can be indicted, prominent figures on both the left and right are increasingly focusing on Trump’s post-presidential jeopardy.
Ken Starr, the former independent counsel who investigated the Clinton presidency, said in a recent interview with Vice News that special counsel Robert Mueller’s probe would either end with an impeachment referral to Congress or an indictment once Trump is no longer president.
“Those are the two avenues that I see,” Starr said.
“My takeaway is 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 real prospect of jail time,” California Rep. Adam Schiff, a former prosecutor and the incoming Democratic chairman of the House Intelligence Committee, added Sunday on CBS’s “Face the Nation.”
Concerned Trump might be able to outlast the threat of criminal charges under current law, Rep. Jerry Nadler, who in January will take over as chairman of the House Judiciary Committee, said he’s looking at passing legislation that would extend the statute of limitations to encompass crimes committed during Trump’s presidency.
“If he can’t be impeached for improper conduct, if there are crimes, he should be made to be prosecuted,” Nadler said last week on MSNBC.
Trump’s defenders say that such talk has gotten far ahead of the facts. Giuliani insisted that, when it comes to Cohen’s payoffs of two women who allege they had sex with Trump, the president is on firm legal standing.
“If they proceed on [the] theory that the payments to the two women were campaign contributions, there’s a big body of [Federal Election Commission] and experts’ opinion that it isn’t a campaign contribution,” Giuliani said.But Trump does pop up repeatedly in court documents alleging that the payments were illegal campaign contributions. Federal prosecutors based in New York, who took the Cohen case on a referral from Mueller, named Trump more than 20 times in their Friday filing, using the term “Individual 1.”
It remains unclear whether Mueller might find criminal charges of his own to lodge against Trump in the course of his investigation, which launched 19 months ago with a mandate to examine whether the Republican’s 2016 campaign conspired with a foreign power to win the presidential election, and also covers whether Trump obstructed the Russia probe by firing FBI Director James Comey.
Giuliani told reporters earlier this year that the Mueller team had informed the president’s lawyers they would follow DOJ guidelines and not indict a sitting president. While Mueller’s office hasn’t commented on Giuliani’s version of events, other legal experts say prosecutors could use the threat of a post-presidency indictment to force his early removal from office.
“Getting a criminal president out of office is sufficiently important that a prosecutor might let a president off scot-free in exchange for a resignation,” Walter Dellinger, a former acting solicitor general under President Bill Clinton, said in an interview.
“At some point the only thing standing between Trump & indictment is his presidential status,” Neal Katyal, the former acting Obama solicitor general, also wrote on Twitter. “The moment that ends, his criminal exposure is yuge. Not just campaign finan[ce] but tax too.”
“At some point he & prosecutors should talk about a deal where he resigns to avoid jail time,” Katyal added.
Past White House scandals have also dealt with questions about legal liability for a former president.
During Watergate, a Washington-based grand jury named President Richard Nixon as an unindicted co-conspirator in the cover-up of the Democratic National Committee break-in. Special prosecutor Leon Jaworski was still weighing the pros and cons of indicting Nixon as a former president before President Gerald Ford pardoned his predecessor.
Decades later, President Bill Clinton’s lawyers were concerned that their client’s legal troubles would extend well beyond his time in the White House, even after they helped the president fend off impeachment for lying under oath and obstructing justice tied to his affair with a White House intern.“I fully expect Starr to indict William Jefferson Clinton January 21, 2001,” David Kendall, then a Clinton personal attorney, told the president’s associates, according to a passage in Washington Post reporter Bob Woodward’s 1999 book “Shadow: Five Presidents and the Legacy of Watergate.”
Ultimately, Clinton and Robert Ray, Starr’s successor as independent counsel, reached a deal announced on Clinton’s last full day in office that ensured the Democrat wouldn’t be indicted after his presidency. In exchange, Clinton admitted to giving false statements to prosecutors, accepted a five-year suspension of his Arkansas law license and later paid a $25,000 fine.
In Trump’s case, one big question will center around whether any potential crimes fall within the statute of limitations — which in most federal cases lasts for five years.
Discussion over the hush-money payments at the heart of Cohen’s case appeared to have started in the summer of 2014, when the publisher of the National Enquirer met with Cohen and Trump to pitch their plan to purchase and kill negative stories about Trump’s relationships with women.
That deal continued through the 2016 campaign, when Cohen paid off adult film star Stormy Daniels and ex-Playboy model Karen McDougal. The last reference to the hush money in court documents describes $420,000 in reimbursement payments made to Cohen “during the course of 2017.”
Nadler said his legislative proposal would “in effect suspend the timing of statutes of limitations on any offenses applying to a sitting president so the clock would stop ticking.”
Still, Nadler’s measure is a longshot. Even though he will lead the Judiciary Committee in a Democrat-led House, the measure would still need the GOP-led Senate’s approval and Trump’s signature to become law. In a text, Giuliani previewed what the president’s push back would be.
“Extend statute of limitations would violate the spirit if not the letter of the constitutional protection against ex post facto legislation,” the former New York mayor said. “Did any of these anti-Trumpers read the constitution or care about [it?]”
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