Michael Cohen's testimony implicates Trump as a co-conspirator in a crime to get elected, but what happens next is unclear

Spencer Platt/Getty ImagesDonald Trump.
  • Under most circumstances, President Donald Trump could soon face charges from federal prosecutors stemming from his former longtime lawyer Michael Cohen’s plea deal.
  • But because he’s president, that’s incredibly unlikely to happen, legal experts say.

President Donald Trump’s former longtime lawyer Michael Cohen’s Tuesday testimony under oath in federal court implicated his old boss as an unindicted co-conspirator to a crime.

Under most circumstances, prosecutors would soon seek to file charges against Trump. But Trump is no ordinary subject.

On Tuesday, Cohen, a man who worked alongside the president for more than a decade, admitted in federal court that Trump directed him to knowingly break the law to boost his own candidacy. Cohen was charged with eight counts, including two related to campaign-finance violations. Those counts, he said, involved Trump, as Cohen said he committed the campaign-finance violations “at the direction of the candidate” and with the “purpose of influencing the election.”

Cohen said that at Trump’s direction, he moved to keep both former Playboy model Karen McDougal and porn star Stormy Daniels from publicly disclosing damaging information that would hurt Trump’s campaign. Both women allege affairs with Trump years ago.

Prosecutors wrote that they could back up Cohen’s admissions through evidence obtained from the FBI’s April raids on Cohen’s home, office, and hotel room. The evidence, they wrote, included documents, electronic devices, audio recordings made by Cohen, text messages, messages sent on encrypted apps, phone records, and emails.

“Directing” Cohen to commit such a crime would make Trump a co-conspirator, legal experts say.

Mitchell Epner, an attorney at Rottenberg Lipman Rich who was previously an assistant US attorney for the District of New Jersey, told Business Insider in an email that “at a minimum,” Trump could be charged with “conspiracy to commit the two campaign finance counts.”

The section of US code dealing with conspiracy states that if “two or more persons conspire either to commit any offence against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both,” should the crime committed be a felony.

“The plea, under oath, establishes that the president was a co-conspirator in the campaign violations to which Cohen pleaded guilty,” Philip Allen Lacovara, who served as counsel to the special prosecutors investigating former President Richard Nixon’s role in the Watergate scandal, told The New York Times.

Prior to resigning from office, a grand jury named Nixon an “unindicted co-conspirator.” Lacovara said that is now what Trump “technically” is.

But it appears highly unlikely Trump will be indicted in this instance – at least while he is in office.

‘Were he not president, Donald Trump himself would almost certainly be facing charges’

The Department of Justice’s Office of Legal Counsel guidelines stipulate that a sitting president cannot be indicted, and Trump’s attorneys have highlighted this on a number of occassions. Those attorneys have also stated that special counsel Robert Mueller, investigating Russian interference in the 2016 election, plans to stick to those guidelines.

Mueller’s office has not independently confirmed that, The Associated Press noted.

There are no guidelines saying an ex-president cannot be charged, and the matter itself has never been tested in court and had its constitutionality determined. Additionally, the US Attorney’s Office for the Southern District of New York has not hinted whether it would follow this guideline, although it appeared clear after Cohen’s court date on Tuesday that they were not pursuing such charges.

“The President of the United States is now, formally, implicated in a criminal conspiracy to mislead the American public in order to influence an election,” The New Yorker’s Adam Davidson wrote. “Were he not President, Donald Trump himself would almost certainly be facing charges.”

Sol Wisenberg, who conducted grand jury questioning of former President Bill Clinton during Whitewater, told the Associated Press that Cohen’s deal was “obviously” bad for Trump, but he assumed Trump won’t “be indicted because he’s a sitting president.”

“But it leads him closer to ultimate impeachment proceedings, particularly if the Democrats take back the House,” he said.

That is the most immediate avenue of concern for Trump. Federal prosecutors in the Southern District of New York “could seek permission from the deputy attorney general to do what we did in Watergate, which was to prepare a ‘road map’ of evidence bearing on the president’s culpability and send it to the House Judiciary Committee, which has jurisdiction over impeachment,” Lacovara told The Times.

Trump himself has opined on this possibility in recent days, telling Fox News in an interview that he doesn’t “know how you can impeach somebody who’s done a great job.”

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