For months now, there’s been much hand-wringing over questions like: When will the so-called Mueller report drop? What will it say? Will the Department of Justice (DOJ) release it to Congress and the public? And, ultimately, will the report trigger impeachment proceedings or enough public outrage to bring down the Trump presidency?
The short answer to the Mueller report conundrum is that current law does not provide for any public report along the lines of what independent counsel Kenneth Starr gave Congress after a four-year investigation of President Clinton.
But the Trump probe is different than Clinton’s in an important respect: Clinton didn’t have line DOJ prosecutors from the Southern District of New York (SDNY) simultaneously investigating his business enterprises — and doing so without the politically-charged “witch hunt” shroud that hovers above special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE.
The SDNY is a formidable force in the Trump world for a host of reasons. Let us count the ways:
- The SDNY recently subpoenaed President TrumpDonald TrumpYoungkin ad features mother who pushed to have 'Beloved' banned from son's curriculum White House rejects latest Trump claim of executive privilege Democrats say GOP lawmakers implicated in Jan. 6 should be expelled MORE’s inaugural committee seeking information regarding potential “mail fraud, wire fraud, money laundering, conspiracy and illegal foreign contributions.”
- It secured a guilty plea from Trump’s former personal lawyer Michael Cohen on eight counts of criminal activity. The charges included criminal tax evasion and campaign finance violations involving $280,000 in payments made to silence women from publicly revealing their alleged affairs with then-candidate Trump. Cohen has since been cooperating with authorities about what he knows.
- In a memorandum filed in connection with Cohen’s sentencing, SDNY prosecutors fingered Trump — identified as “Individual-1” — as having participated in Cohen’s campaign-finance related crimes involving hush money. It states, “Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature and timing of the payments. 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.”
- The SDNY secured a non-prosecution deal with American Media, Inc. (AMI), which owns the National Enquirer. AMI accepted responsibility for a “role in making [a] $150,000 payment” to former Playboy model Karen McDougal “in concert with a candidate’s presidential campaign, and in order to ensure that the woman did not publicize damaging allegations about the candidate before the 2016 election.” That candidate, quite obviously, was Donald J. Trump. “AMI further admitted that its principal purpose in making the payment was to suppress the woman’s story so as to prevent it from influencing the election.”
- The SDNY reached an immunity deal with AMI Chairman David Pecker, who is a longtime pal of Trump. Pecker is talking to prosecutors in exchange for the government’s agreement not to use what he says against him in some measure or another.
- The SDNY also has an immunity deal with the Trump Organization’s Chief Financial Officer Allen Weisselberg. Weisselberg started with the Trump family as an accountant for Trump’s father, Fred Trump, in the 1970s. He was thus deeply involved in Trump’s business and personal finances, including his tax returns, for decades. A treasure trove of information on how money flowed in and out of the Trump Organization, Weisselberg also likely knows about any Trump Organization financial dealings involving Trump’s eldest two sons.
All told, there are a number of reasons why the SDNY’s full plate is legally and practically significant for team Trump:
1. If information provided by Weisselberg, Pecker, Cohen or anyone else reveals wrongdoing by the Trump Organization, that could squeeze the president in ways that his constitutional claim to immunity from prosecution would not cover. Corporations can be charged with crimes, and a take-down of the Trump empire — possibly along with his kids — is something that even the most cynical cannot overlook.
Moreover, “follow the money” crimes like bank fraud, wire fraud and money laundering are easier to prove than “intent” crimes like obstruction of justice — a topic that’s front and center in the Mueller probe. To prove financial crimes, prosecutors need documents or electronic data showing that certain illegal transactions were made knowingly. The government need not prove that the president, say, fired former FBI Director James ComeyJames Brien ComeyTrump defends indicted GOP congressman Andrew McCabe's settlement with the Department of Justice is a signal to John Durham Giuliani told investigators it was OK to 'throw a fake' during campaign MORE for the specific purpose of interfering with the Russia probe and not for some other reason. That’s a tougher showing.
2. The full slate of SDNY prosecutors cannot be reasonably “fired” by Acting Attorney General Matthew Whitaker or his successor if it turns out that the head of the executive branch (i.e., Trump) wants to end all Trumpesque criminal investigations. Nor is their mandate tethered to the terms or continued existence of an order of referral — unlike the controversial handoff to Mueller of Russia-related matters by Deputy Attorney General Rod RosensteinRod RosensteinWashington still needs more transparency House Judiciary to probe DOJ's seizure of data from lawmakers, journalists The Hill's Morning Report - Biden-Putin meeting to dominate the week MORE.
3. Because career prosecutors are less politicized than a special counsel, their work could well continue into the next president’s term. If that person is someone other than Trump, the five-year statute of limitations for federal crimes could leave Trump facing indictment and even imprisonment if charged as a private citizen upon leaving office. In other words, if Trump committed a criminal offense in the five years prior to the day he leaves office, federal criminal charges would on the table at the end of a one-term presidency. That’s assuming, of course, that there’s evidence to support them.
For now, the public can only speculate, and that’s never a wise thing to do when it comes to matters of extraordinary gravity — like whether the most powerful person in the world is, in fact, a criminal.
Kim Wehle is a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. Her forthcoming book, “How to Read the Constitution and Why,” will be published by HarperCollins in June of 2019. Follow her on Twitter @kim_wehle.