There are two big unanswered questions concerning yesterday’s Michael Cohen plea deal:
- Is Cohen a cooperating witness who has “flipped” on Trump and will be working with prosecutors to bring down the president?
- Since Trump has not been indicted as a co-conspirator, when might that change and when might the president actually be indicted?
It appears that the answer to #1 is “yes” which leaves as the real mystery the second question.
Most of the mainstream media commentators who are talking about this right now seem to be of the opinion that Trump will not be indicted either by Mueller or by the team of Justice Department prosecutors in the Southern District of New York (where Cohen pleaded guilty). And they may be right, because there is very little precedent to go on concerning presidential indictments, and Justice Department guidelines seem to prohibit it.
At the very least, we know that the president would fight a federal indictment because we’ve been told that by his lawyer, Rudy Giuliani.
But now a new theory concerning presidential indictments has come up, thanks to Pulitzer Prize winning investigative journalist David Cay Johnston.
“NY state and local prosecutors can go after Trump for crimes, thanks to Michael Cohen’s guilty plea. Will they? My @DCReportMedia piece explains the law and the opportunity to do justice.”
NY state and local prosecutors can go after Trump for crimes, thanks to Michael Cohen's guilty plea. Will they? My @DCReportMedia piece explains the law and the opportunity to do justice. https://t.co/LnhUpPFwHp
— David Cay Johnston (@DavidCayJ) August 22, 2018
According to Johnston, ‘Michael Cohen’s guilty plea opens the door to state criminal charges for Trump, his company, and his kids.” He wrote that Michael Cohen’s guilty plea:
‘exposes the president to criminal prosecution in New York State, an angle the mainstream news organizations have all missed. State prosecution is a critical concern because Trump has the constitutional authority to pardon Cohen, or commute his sentence, for federal crimes. Trump claims he can pardon himself and continue in office.”
“Trump has claimed the power to fire Robert Mueller, the special prosecutor, or hobble his inquiry, and authority to take over the investigation and even run it himself. But Trump has no power to stop any state-level criminal investigation or pardon anyone convicted of state crimes.”
“Justice Department guidelines prohibit indicting a sitting president, though he could be prosecuted after leaving office. No such restriction applies to New York and other state prosecutors, however, who are limited only by their willingness to act in the public interest.”
In his plea deal Cohen testified that he committed crimes “in coordination and at the direction of a candidate for federal office” which everyone knows means Donald Trump. So Cohen has testified that he worked with the president to commit at least two serious criminal felonies.
As Jeffrey Tobin, the legal analyst said on CNN.“Donald Trump was a co-conspirator or an aider and abettor of this crime.”
Congressional Republicans have been protecting Trump but Cohen’s confession opens the door wide for New York state prosecutions by Cyrus A. Vance Jr., the Manhattan district attorney, and Barbara Underwood, the acting state attorney general. They are Democrats but so far have been reluctant to investigate Trump, for unknown reasons.
According to Johnston, “Vance and Underwood have taken oaths to that require them to treat all equally before the law and neither to make political decisions nor cower before a high office holder.” But will they uphold their oaths or ignore the opporunity that is before them?
Johnston says that a state investigation would begin with New York State Penal Code Article 20 which provides that “when one person engaged in conduct which constitutes an offense,” as Cohen admitted that he did, “another person is criminally liable for such conduct” if he “solicits, requests, commands, importunes or intentionally aids such a person to engage in such conduct.”
The state laws in question are very clear, and it is very clear that both Cohen and Trump violated them. The hush money payments have been admitted, and thus violations of numerous state laws have also been admitted. Culpability lies with Cohen, Trump, Trump’s organizations and others involved, including his family.
According to Johnston:
“Cohen’s confession to tax crimes and to the hush money payments could, with additional investigation, provide a powerful wedge to investigate the Trump Organization, Trump and Cohen under New York State racketeering law.”
“At a bare minimum, Cohen’s allocution to his crimes provides Vance and Underwood with a solid reason to open criminal investigations. The question for Empire State voters is whether they will demand that these officials do their duty.”
New York officials could make history by indicting a sitting president. Hopefully they will do that because our country is at risk and steps need to be taken immediately to minimize that risk which arises from the lawlessness of the Trump presidency.