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.
“All sorts of possibilities along the inchoate crime spectrum,” she said.
“Mueller Is Always Full of Surprises”
For all of Trump’s invective against the Special Counsel’s Office, the prosecutors who connected him with Cohen’s campaign-finance violations are from the Southern District of New York.
Harry Sandick, a former prosecutor in that district, said in a phone interview that he could only speculate why his ex-colleagues avoided Trump’s wrath.
“Mueller is always full of surprises, and so it’s possible because of how closely guarded appropriately he’s conducted his investigation that there’s some dynamite stuff that we’re going to learn,” said Sandick, now a white-collar defense attorney for the firm Patterson Belknap Webb & Tyler.
“We just don’t know it now, but Trump presumably knows or suspects some of it.”
Of the two sentencing memos against Cohen on Friday, the Southern District’s was far more scathing toward Cohen, and Trump’s attorney Rudy Giuliani tweeted that it vindicates the perception of Cohen being a liar.
“They don’t agree that he’s a liar,” Sandick countered. “They said he was truthful. They said he wasn’t fully forthcoming. They said he didn’t talk about everything they want him to talk about.”
Southern District prosecutors have been pushing for “substantial” jail time for Cohen, who will be sentenced on Wednesday.
Playing the unlikely good cop to the Southern District’s bad cop, Mueller did not recommend any additional sentence, and Sandick interpreted New York’s tough posture as a bid to send a message to half-hearted cooperators.
“It seems as if there is some line of investigation that they believe that Cohen could be very helpful about and he’s just not willing to talk about it, and he’s not willing to become a full cooperator,” Sandick said. “And it might be that that might be helpful to them in something related to Trump, or it could be related to something entirely unconnected to Trump.”
The Southern District will be around long after the special counsel’s investigation concludes, and Sandick noted it has a more of an incentive to adopt a tougher posture on Cohen.
“If they approve the idea that Cohen gets a 5K without fully cooperating, no one will ever do full cooperation in the future,” Sandick said, referring to a federal cooperation agreement.
In the meanwhile, Sandick cautioned against reading too much into the single sentence from the Southern District’s memo.
“You hear people saying, ‘The government alleged that Trump is an unindicted co-conspirator,’” Sandick said. “That’s not what they said. If they wanted to say that, those words are known to them as well as to us.”
If prosecutors were to target Trump, Sandick said, the timing of the transactions would be powerful evidence.
“Is this a payment that was made to avoid personal embarrassment or for campaign purposes?” he asked. “On that piece of the puzzle, I think prosecutors would have a good argument because he didn’t pay those people for a long period of time, and he paid them right before the election. So, I do think the timing is not good for the defense of such a claim.”
Like de la Vega and Vance, Sandick believed that a conspiracy to defraud charge was possible but a “relatively novel” charge that prosecutors would treat with caution.
There is a controversy over whether Department of Justice’s Office of Legal Counsel’s memo forecloses the possibility of indicting a sitting president, but Rep. Adam Schiff, D-Calif., said that Trump could face “jail time” after he leaves office.
Observers have noted that the Trump Organization could be prosecuted as a separate entity for reimbursing Cohen for payments disguised as legal fees.