Accused of crimes, but is Trump shielded from prosecution?

WASHINGTON: When a lawyer tells prosecutors that his client directed him to commit a crime and pleads guilty to related crimes himself, an indictment of the client is very likely to follow.

The nation is about to find out whether there is an exception to that general rule when the client is the president of the United States.

Although there is no explicit prohibition in the Constitution against indicting a president, the Justice Department has long taken the position that sitting presidents are not subject to criminal prosecution.

That would suggest that the extraordinary admissions and accusations from Michael D. Cohen, President Donald Trump’s former lawyer and fixer, will not result in criminal charges against Trump while he is in office. Cohen admitted to arranging payments to women to buy their silence about what they said were affairs with Trump, and he said Trump instructed him to pay the money to influence the election.

If all of that is true, Trump committed serious crimes.

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

A grand jury named Nixon an “unindicted co-conspirator,” and he later resigned in the face of mounting calls for his impeachment. Lacovara said Trump now also “is, technically, an unindicted co-conspirator.”

But under current Justice Department policy, Trump will not face prosecution at least until he leaves office.

A middle ground and second option urged by some legal experts is to allow prosecutors to obtain an indictment but defer further proceedings until the president leaves office.

The third option is impeachment, and prosecutors may present the evidence they have gathered to the House for its consideration.

Prosecutors in Manhattan, Lacovara said, “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.”

Both the Manhattan prosecutors handling the Cohen case and Robert Mueller, the special counsel investigating the Trump campaign’s ties with Russia, are bound by Justice Department policies banning the prosecution of sitting presidents.

The Supreme Court has never answered the question of whether sitting presidents can be prosecuted. The court did hear arguments on the issue in 1974 in a case in which it ordered Nixon to turn over tape recordings, but it did not resolve the matter.

The closest the Constitution has come to addressing the issue is in this passage, from Article I, Section 3: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

This much seems clear: The president and other federal officials may be prosecuted after they leave office.

However, “whether the Constitution allows indictment of a sitting president is debatable,” Brett M. Kavanaugh, who served on the staff of Ken Starr, the independent counsel who investigated President Bill Clinton and is now Trump’s Supreme Court nominee, wrote in a 1998 law review article. Kavanaugh, who sits on the U.S. Circuit Court of Appeals for the District of Columbia, also concluded that impeachment, not prosecution, was the right way to address a sitting president’s crimes.

The most prominent dissenter from the prevailing view is Eric M. Freedman, a law professor at Hofstra University and the author of a 1999 law review article that made the case for allowing criminal prosecution of incumbent presidents.

Freedman wrote that granting sitting presidents immunity from prosecution was “inconsistent with the history, structure and underlying philosophy of our government, at odds with precedent and unjustified by practical considerations.”

He pointed out that other federal officials who are subject to impeachment, including judges, have been indicted while in office. Courts have rejected the argument that impeachment is the sole remedy for such officials.

Vice President Spiro T. Agnew, facing a grand jury investigation that would lead to his resignation in 1973, argued that he was immune from prosecution while in office. Impeachment, he said, was the only remedy.

The Justice Department, in a brief signed by Solicitor General Robert H. Bork, disagreed. But, though the question was not before the court, Bork added that “structural features of the Constitution” banned prosecutions of sitting presidents.

Since the president has the power to control federal prosecutions and to pardon federal offenses, Bork wrote, it would make no sense to allow the president to be prosecuted while he is in office: He should be prosecuted after he is removed from office and forfeits those powers. (Bork would go on to become a federal appeals court judge and an unsuccessful nominee to the Supreme Court.)

A year later, Leon Jaworski, a Watergate special prosecutor, took a less categorical position.

“It is an open and substantial question whether an incumbent president is subject to indictment,” he told the Supreme Court during his successful quest to obtain the White House recordings that contributed to Nixon’s resignation.

If Trump were to be treated as any other candidate — that is, not as president — he would likely face charges similar to those Sen. John Edwards of North Carolina faced when he was indicted on a charge of suspected campaign finance violations in 2011. Those charges carried a combined, maximum sentence of 30 years in jail and more than $1.5 million in fines.

“We’re talking potential years of jail time if he’s not the sitting president but was instead a civilian candidate,” said Paul S. Ryan, the vice president of policy and litigation at Common Cause, which filed campaign finance complaints based on the Clifford and McDougal cases.

Edwards was not convicted — the jury acquitted him on one of the counts and could not come to a decision on the rest of them. But, Ryan said, prosecutors in New York “have a much stronger case for a variety of reasons against Team Trump.”

Edwards’ case — the first of its kind and therefore, the only actual template for the New York prosecutors — centered on some $1 million that two of his supporters provided to finance an elaborate scheme portraying Edwards’ mistress, Rielle Hunter, as the lover of Edwards’ aide Andrew Young.

The Edwards prosecutors argued that the $1 million that Edwards’ donors gave to the cover-up — which included a claim that Young was the father of the baby Hunter had with Edwards — was, in effect, a political donation.

To bring criminal charges, prosecutors had to show that the money was spent primarily to protect Edwards’ candidacy. In making his plea on Tuesday, Cohen said, outright, that his activity was to influence the election and that he did it at Trump’s direction.
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