MANHATTAN (CN) – Dogged by insinuations of criminal liability, President Donald Trump tweeted Monday that the hush-money payments he is accused of having directed from attorney Michael Cohen were “simple private transactions.”
“Lawyer’s liability if he made a mistake, not me,” Trump tweeted, before his routine invocation of a “WITCH HUNT!”
Casting doubt on that claim, however, three ex-federal prosecutors said in interviews this afternoon that Trump has more to worry about than campaign-finance violations.
“Yes, I think Trump is exposed,” said Elizabeth de la Vega, who spent more than two decades prosecuting financial and organized crime in U.S. attorney’s offices in Minnesota and San Jose.
The transactions at issue stem from payments that Cohen made through shell companies to adult film actress Stormy Daniels and former Playboy model Karen McDougal to keep the public from learning before Election Day about their alleged affairs.
Just this past Friday, federal prosecutors included a thinly veiled reference to Trump in their Dec. 7 sentencing memo for Cohen. “In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1,” it states.
Cohen first implicated Trump when he pleaded guilty to the offense in August.
Some observers have interpreted the government’s latest brief as implicating Trump in the commission of two felonies. De la Vega said such a case would turn on whether the president violated the statute "knowingly and willfully."
“I think the prosecution likely has that evidence as to Trump,” de la Vega said in an interview. “He and Cohen were subjects of an extremely similar FEC complaint that was dismissed on jurisdictional grounds, but the complaint and order would give Trump notice of the violation.”
She noted that prosecutors also have Trump and Cohen on tape discussing the payment, in recordings that aired on CNN and other outlets.
In addition to campaign-finance charges, however, various observers – including de la Vega and investigative reporter Marcy Wheeler – have argued that either Trump or the Trump Organization could be charged with conspiracy to defraud the United States.
“The conspiracy to defraud charge does not require willfulness, so it's slightly easier to prove,” de la Vega said. “These pay-offs would be part of a broad conspiracy to defraud the U.S. thru deceitful conduct that impairs the work of the FEC, Treasury Department and DOJ, among others.”
Despite Trump's claim that these were simple payments, prosecutors made clear these were sophisticated transactions engineered through two shell companies: Resolution Consultants and Essential Consultants.
“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,” prosecutors wrote. “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.”
Over the past year in Washington, D.C., a federal judge has rebuffed efforts to nix a conspiracy to defraud charge that Special Counsel Robert Mueller leveled against a Russian troll factory.
“So, at least three types of crimes,” de la Vega said, citing wire fraud as a third. “It's not either/or.”
University of Alabama law professor Joyce White Vance, an ex-prosecutor with 25 years of experience, said that prosecutors could also consider bank fraud.