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There are a couple of sure bets in the days ahead. Whether former President Donald Trump does or does not get indicted and arrested for paying hush money to a porn star and lying about it in his business records, or charged with violating campaign finance laws related to the payment, he will assuredly use the moment to portray himself as a victim of a massive conspiracy — and to raise money. Nobody is better at playing a martyr than Donald Trump.
Today, a grand jury will hear at least one more witness in its investigation of whether Trump paid Stormy Daniels to keep her quiet about a sexual affair she says she had with Trump before he ran for president. CNN says, “Attorney Robert Costello, once a legal adviser to Trump attorney Michael Cohen, will appear Monday before the New York grand jury,” apparently to cast doubt on Cohen’s testimony. Cohen says he also has been told to show up at the district attorney’s office today as a rebuttal witness for whatever Costello brings to the table.
The underlying story
If everything goes wrong for Trump, what is the worst he could face? You have to go back in time to understand what allegedly occurred.
One month before the November 2016 election, Daniels shopped her story about a tryst with Trump to the National Enquirer. The tabloid’s publisher had an agreement with Trump to “catch and kill” stories that could be damaging to his friend, the presidential candidate.
But the Enquirer didn’t buy the story. Instead, the publisher helped broker a deal between Trump’s lawyer, Cohen, and Daniels’ lawyer. Cohen paid the $130,000 by using a home equity line on his own home, and said Trump reimbursed him.
All of those details came out in Cohen’s guilty plea to federal campaign finance crimes. The hush money was an improper campaign donation. Cohen said he used his Trump Organization email account to communicate details of a payment transfer to Daniels (whose real name is Stephanie Clifford).
The possible charges
In Cohen’s pleading, he said Trump knew that the payment was not part of a “legal retainer,” which is what Trump’s company records showed. And that is why Trump could face a charge of falsifying business records, a misdemeanor in New York. But if prosecutors could show intent to defraud, then the charges could elevate into a felony.
It is also possible that Trump could face state election laws because Cohen paid the hush money that helped the campaign.
For prosecutors to make these charges stick, they will have to show Cohen’s claims to be dependable. That’s why today’s testimonies will be critical to whatever comes next. Knowingly false financial disclosure carries up to a $50,000 fine and a year in prison or more.
Trump’s defenses over time
As is often the case with Trump, he has offered varying versions of what happened. As one version wears down, he floats another.
In April 2018, Trump was asked by reporters while aboard Air Force One whether he knew about the payment. Trump said no and referred questions to Cohen.
Reporters asked Trump, “Do you know where he got the money to make that payment?”
“No,” Trump said. “I don’t know.”
A month later, Trump lawyer Rudy Giuliani said that he had documentation showing that Trump had personally made the payment to Cohen. But Giuliani said to The New York Times, and this is important, “That removes the campaign finance violation, and we have all the documentary proof for it.” Giuliani said that when the initial payment was made, Cohen did it “on his own authority.” The May 2, 2018, Times story included this key quote:
“Some time after the campaign is over, they set up a reimbursement, $35,000 a month, out of his personal family account,” Mr. Giuliani said. He added that over all, Mr. Cohen was paid $460,000 or $470,000 from Mr. Trump through those payments, which also included money for “incidental expenses” that he had incurred on Mr. Trump’s behalf.
The next day, Trump admitted to paying the money to Daniels:
(Twitter)
What about that statement a month earlier that he didn’t know anything about the payment to Daniels? His then-press secretary (now governor of Arkansas) lobbed up this explanation:
“This was information the president didn’t know at the time but eventually learned … we give the very best information we have at the time.”
In other words, she suggested that Trump made hundreds of thousands of dollars’ worth of payments that he didn’t know about to solve a potential campaign-wrecking problem right before the election.
And the four other pending investigations
In some ways, the Daniels case is the least threatening storm Trump faces. There are even more serious investigations on his horizon, all of them maturing to a stage where they will either produce prosecution or implode. Trump is the focus of multiple criminal investigations that could result in an indictment. No former president has faced so many possible indictments.
Here is the minefield he must navigate, and this is not an exhaustive list:
- The Mar-a-Lago documents investigation is in the hands of a special Justice Department prosecutor and grand jury and involves the possible mishandling of classified information, in addition to destroying and hiding government records. Some of the documents included details of nuclear secrets and key information about Iran and China. Mishandling classified federal documents may be a felony that includes prison time.
- The Jan. 6 investigation is trying to conclude whether Trump could face criminal charges for “any attempt to interfere with the lawful transfer of power from one administration to another.”
- The Georgia Election interference investigation: The district attorney in Fulton County, Georgia, is investigating whether Trump tried to overturn the state’s election in 2020 by calling state officials and demanding that they find enough votes to show that he won Georgia. The grand jury handed its report to the district attorney, who is considering whether to file charges against up to a dozen and a half people. A couple of days ago, The Atlanta Journal-Constitution reported that there is a recording of a phone conversation between Trump and the former Georgia House speaker in which Trump pushes the speaker to call a special session of the legislature to overturn the election.
- The New York business practices lawsuit filed by Attorney General Letitia James is an investigation that focuses on Trump and three of his children. It claims they intentionally misstated the values of various properties to get a break on insurance and loan rates. That suit seeks a quarter of a billion dollars and would bar Trump — as well as Donald Trump Jr., Eric Trump and Ivanka Trump — from serving as an executive on the board of any New York registered company. They could also be barred from buying any commercial property in New York State.
Would a criminal charge against Trump really be history-making?
Yes. The Washington Post put it this way:
No former president has been charged with a crime in U.S. history. In cases when investigators found evidence suggesting a president engaged in criminal conduct, as with Richard M. Nixon and Bill Clinton, authorities ultimately decided not to pursue such cases — in part to avoid appearing to use government power to punish political enemies and to ensure the tradition of a peaceful transfer of power.
Wayne State law professor Kirsten Matoy Carlson explains that while it is legally questionable whether a sitting president can be prosecuted for crimes, charging a former president is a different matter:
Federal law treats former presidents differently from sitting presidents. Former presidents do not retain all the legal advantages of being president. For example, former presidents can try to assert executive privilege to shield certain documents and information from Congress, courts and the public to protect the nation, but courts have limited their ability to do so.
The question of whether a sitting president can be indicted remains unresolved. In 2000, the Department of Justice adopted a policy against indicting a sitting president. The policy protects presidents while they are in office so they can fulfill their constitutional duties.
But it is tradition, not law or policy, that has kept former presidents from indictment in the past 240 years.
The legal arguments against indicting a sitting president — namely that it would undermine the capacity of the executive branch to perform its constitutional functions — lose weight once a president leaves office. A former president becomes a private citizen and no longer has any duties under the Constitution.
Now the COVID-19 virus may have started with ‘raccoon dogs?’
Let’s just start by saying it is increasingly clear that experts do not know where the coronavirus behind the COVID-19 pandemic originated.
First. it seemed certain it came from bats in a food market in Wuhan, China. More recently there was some evidence that it may have come from a laboratory, although that was not certain. Now, there could be a link to a critter called a “raccoon dog.”
Those of us who grew up in Kentucky know of such a dog used in hunting. That is not what this is. This is an animal originally introduced for the fur trade in Asia. They are not dogs.
But in recent days, some international experts have said they have genetic samples that an animal being sold illegally in the Wuhan market may have been ground zero for the pandemic. And, the researchers say, the racoon dogs may have been infected by a human or some other species.
All of this information might have been helpful if it had been released much earlier, but the Chinese government did not allow it, even though it collected the swabs that led to this possible explanation in January 2020.
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