It’s easy to get all scrambled up in the legal jargon that surrounds the investigation into the Trump team’s Russia ties. There are dozens of federal conspiracy laws that make it a crime to commit perjury or make false statements. There are federal campaign finance laws, and laws that require foreign agents to register and disclose their agencies. It’s confusing to the uninitiated, and that confusion has been weaponized by President Trump and his tribunes as they try to defend their increasingly indefensible legal positions.
That’s why we hear so much from the White House on the bogus argument about “collusion,” as though it were some sort of relevant legal standard. And it’s why the president keeps pretending on Twitter that neither special counsel Robert Mueller nor the mainline federal prosecutors probing Trump’s one-time fixer Michael Cohen in New York have implicated Trump in any crimes. They have. Friday’s three sentencing memorandums filed in the Cohen case and the case against Paul Manafort, Trump’s former campaign manager, make that clear. If President Trump were just plain Donald Trump, with no constitutional protections, he’d very likely already be under indictment. On that there ought to be no more reasonable doubt.
But that’s the law, and when it comes to high crimes and misdemeanors there must also be the politics of the matter. Scores of Republican senators have tethered themselves to this president, and this administration, in the hope that Trump’s base will protect them in 2020 and beyond. These senators will continue to justify and defend the president, and continue to muddy the legal waters, until it is politically untenable for them to do so. And that moment is going to come, if it ever comes, when even Trump voters cannot deny the evidence that is placed before them.
Which brings me to the literary genius of Friday’s filings. This paragraph, from page 23 of the sentencing memo filed by federal prosecutors in the Southern District of New York in the Cohen case, frames the issue as succinctly as any journalist or legal analyst ever has. It ought to be part of the prosecution’s opening statement should the president ever be impeached or simply become a criminal defendant.
Why does Donald Trump’s Justice Department — and not just special counsel Robert Mueller — want Donald Trump’s former lawyer and fixer to serve “substantial” time in a federal penitentiary? Here’s why:
First, Cohen’s commission of two campaign finance crimes on the eve of the 2016 election for President of the United States struck a blow to one of the core goals of the federal campaign finance laws: transparency.
While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows.
He did so by orchestrating secret and illegal payments to silence two women who otherwise would have made public their alleged extramarital affairs with Individual-1. In the process, Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election.
This passage (it’s one graph in the actual filing) summarizes the investigation into the Trump team’s Russia ties and does so in a way that ought to resonate with voters who are not versed in the language of the law. It is a beautiful bit of legal writing because it makes the broader point about why, prosecutors say, what Trump and company have done here is not just immoral and unethical but illegal. Their efforts, the government alleges, have been aimed at ensuring that there are really two elections in America every two years. One for honest voters, the suckers like you and me, and the other for guys who hire guys like Michael Cohen and Paul Manafort.
The passage above explains not just the motive behind the hush money payments said to have been made by Cohen on Trump’s behalf to silence two women with whom the president allegedly had extramarital affairs. It explains not just what it says was the Trump team’s collaboration with Russian officials at a time when we know the Russians were actively seeking to interfere with our elections. It explains not just what prosecutors say was the president’s firing and hiring of FBI and Justice Department officials to try to obstruct the investigation into all of this. It also explains the broader Republican effort to undermine elections by suppressing the votes of people unlikely to vote for them.
Before the sun had set on the sentencing memos, Trump’s defenders were pitching the argument that every election is manipulated from “the shadows,” that campaign finance laws are too broad anyway, and that what Cohen and Manafort did here was not much different from what political operatives do in every campaign. The Washington Post referred to this reaction as a “shrugged shoulders” strategy by White House officials even as they prepare for “siege warfare” once Democrats take over control of the House of Representatives and start issuing subpoenas for testimony and documents. I call it cynical with gusts up to delusional. “Totally clears the President,” Trump Tweeted.
This was not ordinary political chicanery before the 2016 election. The Russians came for a reason, because in Trump they believed they had a guy they could work with — and it hasn’t been an ordinary cover-up since. There is nothing ordinary about agents of a foreign power trying to manipulate an American election or about a president using his sweeping executive power to protect himself from accountability with the executive branch itself. Besides, Cohen and Manafort committed their crimes, along with others as yet unidentified, at a time of particularly lax campaign finance laws (thanks, in part, to Citizens United).
The laws are complex. So were the machinations of the president’s men. But at the center of all of this is a simple story that we now know is based on evidence federal prosecutors would test in court. These guys broke the law to hide the truth about the 2016 election and then, when they were caught, they lied to cover it up. In so doing, they diminished the voting rights of the rest of us, undermined the integrity of our elections, gave aid and comfort to a foreign power, and sought to evade the rule of law through the obstruction of justice. That’s the signal here. The rest, from Individual Number 1 especially, is now and forever just the noise.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
(Image: Mark Wilson/Getty)