With Michael Cohen packing for prison, is there enough evidence to indict Trump?

If Michael Cohen is guilty, Donald Trump is guilty. 

It is the most basic precept of criminal law that a person who orders the commission of a crime is as guilty as the person who commits the crime: A drug lord doesn’t deliver kilos of cocaine to his buyers, and a mob boss doesn’t break the legs of liquor store owners who refuse to pay “taxes” to the crime family. There are minions for the dirty work. 

I cannot count the number of defendants I prosecuted who thought they could escape criminal liability by telling a jury that they did not carry the kilos or swing the bat. The problem is, it doesn’t work. The court’s instructions, which direct the deliberations of a jury, clearly state that when two people combine their efforts to commit a crime, both are guilty.

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Michael Cohen, President TrumpDonald John TrumpHarris bashes Kavanaugh's 'sham' nomination process, calls for his impeachment after sexual misconduct allegation Celebrating 'Hispanic Heritage Month' in the Age of Trump Let's not play Charlie Brown to Iran's Lucy MORE’s former personal attorney, pleaded guilty to violating campaign finance laws by negotiating hush money payoffs to two women, in order to influence the 2016 presidential election. 

All the benefits from Cohen’s crimes ran directly to Donald Trump, and Cohen committed the crimes because his boss told him to – We know this because Cohen said so under oath, when he pleaded guilty in August. Friday’s sentencing memorandum filed by prosecutors confirmed that Cohen “acted at the direction of and in coordination with” the President.

Attempting to loosen the tightening noose, Trump insisted he “never directed Michael Cohen to break the law.”  Trump also attacked Cohen, who is known to “fix” Trump’s moral and legal lapses: “He is a lawyer and is supposed to know the law.”

Despite Trump’s pushback, the prosecutors’ sentencing memo has sparked renewed debate about whether a sitting president can be indicted. On Monday, Harvard Constitutional Law Professor Lawrence Tribe strongly opined that a sitting president could be indicted, especially when the indictment charges a crime that helped the President get elected, like a campaign finance violation.

If Trump is subject to indictment, prosecutors may need Cohen to make the charges stick. That’s a problem. 

Here’s why: Cohen has provided the best evidence of Trump’s involvement in the crimes, both through his statements in court and his interviews with prosecutors. It might seem that even with Cohen in prison, his prior statements could be used to prove a case against Trump. But that’s not so. If prosecutors tried to use those statements at a trial, the judge would declare them “hearsay” and bar them from evidence. Hearsay is defined as a statement that is not made “while testifying at the current trial” and that is being offered to “prove the truth of the matter asserted.”

The 6th Amendment to the Constitution also requires that people have the opportunity to cross examine witnesses who present evidence against them, so the only way that Michael Cohen’s information about Trump could be used in a trial is if Cohen agreed to come to court, testify, and be cross examined.  

If Cohen had signed a traditional cooperation deal, he would be obligated to testify at a Trump trial. But that’s not what happened. While Cohen offered some cooperation, he refused to sign a full cooperation agreement, so he is under no obligation to testify. 

Given the scathing sentencing memorandum filed by the New York prosecutors, which painted Cohen as a legal mercenary willing to compromise personal and professional ethics to satisfy his greed and ambition, it’s unlikely he would voluntarily agree to testify on prosecutors’ behalf.   

Prosecutors could grant Cohen immunity and force him to testify, but given the endless opportunities for a reluctant witness to damage a prosecutor’s case, it is unlikely prosecutors would present a hostile witness as the cornerstone of a case against the President.

Their other option is to hope that Cohen’s prison sentence softens him to the idea of signing a full cooperation agreement that includes testimony against Trump. The federal rules allow for this, but prosecutors’ full-throttle public trashing of Cohen’s character makes it unlikely they want him, or the baggage he brings, anywhere near a witness stand. 

If Trump were indicted, he would no doubt use the same defense successfully deployed by John Edwards, who claimed money paid to his mistress was not a contribution designed to influence the election, but rather was to keep his marriage intact. 

Given Mr. Trump’s multiple marriages, adulterous history,  and modus operandi — as expressed in his own words in the infamous Access Hollywood video — a claim that Trump’s payoffs were intended to squelch disclosure of his affairs for the purpose of saving his marriage may gain some traction.

With Cohen out of the running for the job of star witness, prosecutors have either decided that they will not seek charges against Trump or that they can prove their case without Cohen. 

If it’s the latter, I predict there are other witnesses with whom Trump directly discussed the reasons for the payoffs. 

National Enquirer publisher David Pecker emerged Wednesday as one such witness after it was disclosed that the Enquirer’s parent company, American Media Inc., entered into an agreement that offers immunity in exchange for AMI’s cooperation in explaining their participation in Trump’s efforts to influence the election by suppressing the story of his affair with Karen McDougal.

Notably, the deal indicates that “at least one other member of the [Trump] campaign” attended meetings in which the illegal activity was planned.

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NBC News has reported that  Trump was the third person in the room where Pecker and Cohen plotted to silence women to save Trump’s election chances. If that is accurate, Trump was a participant in the illegal blueprint, and Pecker could testify to as much.

If a case against Trump is to be charged, there will almost certainly be recordings, emails, or texts that establish Trump’s payoffs were intended to save his election chances. Given Trump’s potential “Melania would have dumped me” defense, that’s the only way a prosecutor would bring such charges.  

One recording of Cohen and Trump discussing the payoff of McDougal has already surfaced. Cohen secretly made the recording. If prosecutors’ assessment of Cohen as shamelessly selfserving was accurate, there is little doubt Cohen made other clandestine recordings of his old boss. 

Whatever recordings exist have likely been seized by prosecutors during their raids on Cohen’s office and residences earlier this year. These recordings would be admissible in a trial against the president. 

However many recordings there are, Michael Cohen undoubtedly made them to hold as a “get out of jail free” card he could offer to prosecutors, should the need arise. In an ironic twist of poetic justice, Cohen’s seized recordings may give prosecutors what they need . . . without his cooperation and without the cost of Cohen as overweight baggage.

Michael J. Stern was a federal prosecutor for more than 24 years with the Department of Justice in Detroit and Los Angeles, prosecuting high-profile crimes, including conspiracy cases related to international drug trafficking and organized crime. He has since worked on the indigent defense panel for the federal courts.