In a federal courtroom in the Southern District of New York on Tuesday, President Trump’s longtime lawyer, fixer, and (perhaps literal) partner in crime pleaded guilty to eight felonies; and while the President may not have been mentioned by name, his presence was undeniable. Americans have spent the past year and a half debating Russia and obstruction to exhaustion, but Counts Seven and Eight of Mr. Cohen’s Criminal Information suggest that the debate might extend much further — to potential criminal liability of the President himself.
In the peculiar circumstances of a sitting President, a criminal indictment is unlikely. This is because under longstanding interpretations by the Justice Department’s Office of Legal Counsel (OLC), “a sitting President is constitutionally immune from indictment and criminal prosecution.” While an OLC memorandum of opinion doesn’t have the force of law, it’s likely that Robert Mueller, the special counsel, accepts OLC’s interpretation.
Still, it’s worth considering what Mr. Trump’s potential criminal exposure might be if he were anyone other than the President of the United States. Whether by indictment, or the Special Counsel’s report, the conclusions of Mr. Mueller’s investigation will eventually be made known to the American people. So, it’s worth analyzing how Mr. Trump might be implicated in Michael Cohen’s guilty plea.
Counts Seven and Eight of Mr. Cohen’s Criminal Information are related to campaign finance violations. Under federal campaign laws, individual contributions to a presidential campaign are limited to $2,700, corporations are prohibited from contributing directly to the candidates, and candidates are prohibited from accepting corporate contributions.
Count Seven charges Mr. Cohen with causing an unlawful corporate contribution stemming from National Enquirer’s $150,000 payment to Karen McDougal. Count Eight charges him with making an excessive campaign contribution by his $130,000 payment to Stormy Daniels.
In pleading guilty, Mr. Cohen acknowledged and admitted to the facts alleged in the Information. Those facts include:
- Mr. Cohen took the actions alleged in Counts Seven and Eight in coordination with other members of the Trump campaign and in an effort to influence the election.
- Mr. Cohen sought reimbursement of the Daniels payment from the executives of the Trump Organization (referenced only as “the Company”) in the amount of $180,035 and that the executives “grossed up” the requested reimbursement to $360,000 for tax purposes, and then added a bonus of $60,000 bringing the total to $420,000 to be paid in monthly installments of $35,000 over the course of twelve months.
- As instructed by the executives, Mr. Cohen submitted invoices for these payments referencing a retainer agreement and payment for services rendered. His invoices were forwarded to another employee who was instructed by email, “Please pay from the Trust. Post to legal expenses. Put ‘retainer for the months of January and February 2017’ in the description.”
- There was no such retainer agreement, and the monthly invoices Mr. Cohen submitted were not in connection with any legal services he had provided in 2017.
Looking to President Trump’s culpability based on these facts, it appears that he personally violated campaign finance laws by accepting an unlawful campaign contribution from a corporation (National Enquirer) and a contribution in excess of the $2,700 limit through Mr. Cohen’s payment to Stormy Daniels. If proven that the President had knowledge of Mr. Cohen’s actions, he would be guilty of conspiring and/or aiding and abetting Mr. Cohen and others in those offenses.
However, the list does not necessarily end there. Because the Trump Organization reimbursed Mr. Cohen for his payment to Stormy Daniels, the President’s company could be indicted with making an unlawful corporate donation to the Trump campaign. Furthermore, assuming that the Trump Organization wrote off Mr. Cohen’s $420,000 payment as tax-deductible legal fees (as they were billed and recorded), the company could be charged with tax fraud as well.
Under the Responsible Corporate Officer Doctrine, an officer of a company may be convicted of an offense alongside the corporation simply by the nature of his position. The doctrine imposes strict liability on high ranking corporate officials. In other words, without having to prove any awareness or knowledge of the criminal activity, the President could personally be found guilty of campaign finance violations or tax fraud committed by the Trump Organization.
I think we can all take a moment away from the debate and agree that Michael Cohen has not done the President any favors.
Laura Beaver is a practicing criminal defense attorney, representing clients in federal and state court.