The revenge of Rod Rosenstein
As special counsel Robert Mueller prepares his final report and Congress ramps up its own investigations, we soon will have answers to questions over collusion, obstruction, and Russian influence. Yet, President Trumpmay answer one of the most intriguing questions of all: Is it better to fight one horse-sized duck or a hundred duck-sized horses? New developments make it likely that Trump will fight a hundred duck-sized horses, in the form of alleged collateral crimes rather than collusion. None appears life threatening in their own right, so the real question here is what they will represent collectively during the next two years of this administration.
When Mueller was appointed, Trump faced a horse-sized duck in the form of Russian collusion allegations. That duck has yet to materialize over the course of dozens of “speaking” indictments and filings. One indictment stated that any contact between Trump officials and Russians was done “unwittingly,” and not one filing or witness has established a link between either Trump or his campaign and Russian hacking of Democratic emails. At most, there is evidence that Trump associates like Roger Stone, as well as Trump himself, wanted to see that material. But many journalists and political operatives were trying to obtain the same material, which had already been teased as forthcoming by WikiLeaks. That itself not a crime.
Trump also faced a horse-sized duck with the obstruction allegations. The problem is that there is still no clear obstruction by Trump, despite a litany of inappropriate comments. He did not fire Mueller. He did not order the end of the special counsel investigation. He also has not been accused of destroying evidence. He has tweeted aplenty but that is more obnoxious than obstructive. None of that changed with the testimony of Michael Cohen, who expressly said he has no evidence of collusion. He offered little more on obstruction beyond saying that he believed Trump wanted him to lie about Trump Tower in Moscow, without Trump ordering him to lie. There is still far more duck than horse in obstruction theories.
Instead, Cohen in his testimony became a virtual wrangler of duck-sized horses, including portraits bought with charity funds, insurance claims with inflated damages, a bid for a National Football League team with inflated assets, hush money for mistresses, even false medical claims to avoid the draft. Many of these little equines are coming from the United States Attorney for the Southern District of New York, rather than the special counsel in Washington. Yet, these pint-sized horses would make a poor case for impeachment even in the aggregate. Many occurred before Trump became president, and most would fall short of the constitutional standard. Even as criminal matters, presumably in prosecutions after Trump leaves office, this herd is even less threatening than it appears.
Of the various legal horses, the most formidable is the allegation that Trump knowingly participated in a violation of campaign finance laws. Cohen produced checks signed by Trump after he became president that were reimbursement for hush money paid to adult film star Stormy Daniels and Playboy model Karen McDougal. Federal prosecutors had treated the payments as a criminal matter when charging Cohen for his role in this violation. Under the same theory, Trump was also a party to the crime.
Justice Department policy, wrongly in my view, maintains that a sitting president should not be indicted. Prosecutors could pursue a charge on the payments against Trump after he leaves office but this is no easy case to make. The Justice Department failed in such a prosecution against former Democratic presidential candidate John Edwards. The signing of these checks and the alleged directions given to Cohen make the case stronger, but Cohen may have weakened the chances for the prosecution. The most obvious defense for Trump is that he was motivated in making the payments not by the campaign but by his marriage and reputation.
Cohen gave Trump a major lift in that defense in two respects. First, he testified that Trump never thought he was going to win the 2016 election. Many others did not either, and even Trump himself said he continued to pursue business deals in anticipation that he might lose. Second, Cohen recounted how Trump had him speak to the first lady about the payments, to assure her that the stories of affairs were untrue. That would support a defense that Trump was worried about his wife finding out and may have been protecting his marriage and his reputation. This all comes down to motivation, and Cohen supplied Trump with a much stronger defense.
Cohen has been charged with bank fraud, as has former Trump campaign chairman Paul Manafort. Cohen implicated Trump in both insurance fraud and bank fraud in the inflation of damages and assets. Those, too, could be charged as crimes. In business, however, assets often are exaggerated. For example, Trump reportedly gave Deutsche Bank figures on his worth that jumped in one year by $4 billion. Yet, the list of liabilities and assets on the “summary of net worth” seems like a fairly preliminary document.
It might not constitute the type of accounting data that would trigger a fraud claim. The $4 billion is also explained as “brand value.” That might be dismissed as a tangible value for accounting purposes, but Trump clearly indicated the source of this claimed value. Inflated insurance claims can be a cut and dried criminal case if they are outside the range of valuation. However, that is a big “if” as businesses often claim the highest potential value or damage when they seek insurance coverage.
The best example of the scourge of tiny horses is the controversy over a portrait of Trump. Most of us were transfixed by the notion that Trump would rig an auction with a straw buyer to make sure that his portrait was the most expensive purchase. That is not a crime but he allegedly used money from his charity to buy the portrait, then hung the painting in one of his properties. In July 2013, Trump tweeted about his portrait being the most valuable item. The date is important, since most forms of fraud have a statute of limitations lasting five years. The statute on fraud involving financial institutions can be as long as 10 years. However, these violations are rarely prosecuted criminally anyway. In the worst cases, the charity is disbanded, which is precisely what happened to the Trump Foundation.
These are all examples of why fighting a hundred duck-sized horses is easier but can take more time. Trump will be answering questions and subpoenas on these allegations for the next two years. It is unlikely to be lethal, absent false statements or obstructions, but it is likely to exhaust him and his presidency. His mounting troubles are likely to rekindle his anger at Deputy Attorney General Rod Rosenstein, who will leave the Justice Department in coming weeks. It was Rosenstein who ordered the referral of the Cohen criminal case to the Southern District of New York.
At the time, I wrote that the move made more strategic than legal sense. It made little sense for Mueller to pursue Manafort on unrelated fraud and other crimes but then to send similar claims against Cohen to New York. If anything, Cohen is linked more closely to Trump, as recently shown. Yet, in doing so, Rosenstein has insured that any forced closure of the special counsel investigation would not end all investigations. In other words, if the horse-sized duck toppled in Washington, a stampede of duck-sized horses was coming from New York. Now we will see which one is worse.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.