Below is my column in The Hill Newspaper on the unrestrained hype on both sides after the recent filings by the Special Counsel and U.S. Attorney for the Southern District of New York.
Here is the column:
In Washington, both sides appear intent on putting the hype back into the hyperbole. Faced with a serious charge that he directed the commission of a federal felony through attorney Michael Cohen, President Trumpimplausibly declared the filings “totally clears” him. Conversely, incoming House Intelligence Committee Chairman Adam Schiff (D-Calif.) declared that Trump is now looking at the “real prospect of jail time” and the “bigger question” of pardons is whether the next president would pardon Trump. Incoming House Judiciary Chairman Jerry Nadler (D-N.Y.) declared that the filings establish that Trump is at the center of a “massive fraud.”
So the public can choose between imminent vindication or conviction, or it can choose reality. The fact is these filings present a serious threat for Trump but do not yet establish a clear likelihood of imprisonment or even impeachment of the president. Here are the reality checks for both sides.
Trump explained on the weekend that the White House is “very happy with what we are reading because there was no collusion whatsoever.” Yet, if anyone in the White House is “happy” about these filings by the special counsel late on Friday, they are engaging in denial bordering on delusion. It is certainly true that the filings conspicuously omit any evidence of collusion with the Russians, let alone a crime connected to collusion.
Indeed, while Robert Mueller references additional efforts of the Russians to reach out to the Trump campaign promising some “campaign political synergy,” nothing apparently came of those queries. Indeed, Cohen does not even appear to have followed up with the newly disclosed offer. However, the documents clearly implicate Trump in directing a campaign finance violation. More importantly, the special counsel suggests that Cohen may have coordinated his efforts as well as false statements with people in the White House, including his perjury before Congress.
Trump clearly does not want his historic 2016 election victory to be tarnished by collusion allegations. However, collusion is not a crime, whereas federal campaign violations are, and the Justice Department has now accused Trump of directing the latter. That becomes more serious if the Justice Department has evidence that the president or his staff sought to conceal the crime or to suborn perjury or to tamper with witnesses.
Finally, Nadler indicated that he may seek to “toll” or to extend the statute of limitations for crimes by Trump to allow for him to be charged after leaving office. The Justice Department has long held the position that a sitting president cannot be indicted while in office. It is a constitutional interpretation I have long rejected as unfounded, but its effect is that a president can run out the period to be charged with crimes. The proposal by Nadler is a fair one so long as it applies to all presidents. If the Justice Department is going to hold to this interpretation, Congress has the authority to guarantee that no president can effectively hold out in the White House until the clock runs out. It would mean that even if Trump is elected to a second term, he still could be charged after leaving office.
There are a couple of threshold observations warranted for the way the Democrats reacted. First and foremost, Trump is correct that the alleged campaign finance violation has nothing to do with the original purpose of the Russia investigation. This special counsel investigation has jumped the rails, and it is really not clear where it is headed. I should note that I have always maintained that the payments to two women who alleged having affairs with Trump have represented a more direct and serious threat to him, and that Cohen himself was also a growing threat. However, if Schiff is referring to the campaign finance violation as posing the first “real prospect of jail time,” it would prove the exception rather than the rule.
Such violations are rarely prosecuted as criminal matters, though it would not be unprecedented, and the vast majority are resolved by fines. For example, the Obama campaign committed a finance violation that was almost 10 times larger at nearly $2 million, but the Justice Department declined to prosecute while President Obama was in office. Of course, there was no evidence that Obama himself directed the violation or sought to conceal damaging information. The Clinton campaign was also accused of violations in hiding millions paid for the controversial Steele dossier as “legal services” while denying the funding of the dossier.
The last such prosecution involving this type of finance allegation was brought against former Democratic presidential candidate John Edwards after his campaign finance chairman and a friendly heiress paid off his mistress. In 2012, he was found not guilty on one count while the jury deadlocked on five others. It is often difficult to prove that payments were made for political as opposed to personal reasons when it is meant to hush up an affair, particularly affairs with a porn star and Playboy bunny.
Again, the greater threat would be efforts during the administration to conceal or tamper with evidence or witnesses. Nadler has a legitimate interest in extending the statute of limitations, but he has overextended the meaning of these filings in describing a “massive fraud.” Indeed, the Justice Department has engaged in an unusually prosaic narrative that portrayed as Cohen conspiring “from the shadows” to undermine the democracy. Putting aside the purple prose, Cohen may have violated federal law, but concealing these payments hardly changed the outcome of the election or represented a “massive fraud.” Prosecutors describe the crime as violating the intent for election transparency, but Trump is widely viewed as an adulterer and his affairs already were widely reported.
Payments to conceal an affair before an election would present a weak case for impeachment without additional criminal acts. Not only is the basis for the charge debatable but it turns on motivation and knowledge. Moreover, many presidents from Thomas Jefferson to Bill Clinton had affairs, before and after elections, that were actively concealed and kept quiet. Nevertheless, Senator Chris Murphy (D-Conn.) declared over the weekend that the filings show the actions of President Trump are now “beyond the stage” of what led to the impeachment of former President Clinton. This is simply not true. Clinton had lied under oath “at this point,” an act that a federal judge later said had clearly constituted perjury.
The fact is Trump could be criminally charged with a federal campaign violation. The real threat, however, is not that allegation but secondary crimes linked to obstruction or subornation or tampering. These are crimes that are parasitic, in that they rest on or feed off original crimes. Ultimately, they can prove more serious for prosecution or impeachment. The continued effort to play the public will only undermine the credibility of our system as a whole. A president has been accused of directing a federal crime. That is neither a vindication nor a conviction. It is serious, and the last thing Americans need is more hype from both sides.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified on the Bill Clinton impeachment standard, represented former attorneys general in that litigation, and served as the lead defense counsel in the last impeachment trial.TAGS