Michael Cohen walked into a courthouse in Manhattan on Tuesday and told a federal judge under oath that he committed a felony and that his former client, President Donald Trump, directed him to do so. In that moment, Cohen upended a months-long strategy by Trump to undermine the investigation by special counsel Robert Mueller, and for the first time presented a path to the end of the Trump presidency.
What is most surprising about Tuesday’s events is that Cohen was not required to implicate Trump in order to plead guilty. The charges prepared by prosecutors did not state that Trump directed Cohen’s criminal activity. They said merely that Cohen “coordinated with one or more members of the campaign” about the unlawful campaign finance payments to whom we know from press accounts to be a Playboy model and an adult film actress.
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When the judge asked Cohen to tell him about the crimes he committed, Cohen could have repeated the vague language in the charges. Instead, Cohen said that he committed two of the eight crimes “in coordination with, and at the direction of” his longtime boss: Trump.
It’s not clear whether federal prosecutors knew in advance that Cohen would implicate Trump, but if they had any reason not to believe him, they were obligated not to permit Cohen to lie to the judge. Because they didn’t, we know that his statements were consistent with the other evidence in their possession.
So Cohen wanted to publicly reveal that Trump directed him to commit crimes. The implication of his statement is obvious — it is a crime to direct someone else to commit a crime. And Cohen is not done. His attorney Lanny Davis told MSNBC’s Rachel Maddow on Tuesday night that Cohen is willing to provide information to Mueller about a possible “conspiracy to collude” with Russia and whether Trump “knew ahead of time” about computer hacking.
Don’t hold your breath waiting for Cohen to testify against Trump. His plea agreement with prosecutors doesn’t include a cooperation provision. He could still help prosecutors, but he evidently didn’t provide them with enough value to get a special deal from them. But Cohen has already provided something valuable to Trump’s political foes — evidence of criminal conduct by the future president that is not neatly countered by the disinformation campaign Trump has mounted over the past several months.
Early in the Mueller probe, Trump often offered candid thoughts about his legal troubles, at times incriminating himself in the process. But in recent months, the president has repeated propaganda about Mueller’s investigation designed to move public opinion, blasting the probe as a “Witch Hunt,” calling Mueller’s team “Angry Democrats” and proclaiming that there is “No Collusion.” Democrats lack a focused countermessage, and Mueller cannot respond to Trump’s attacks.
So the Trump disinformation campaign has worked. Only 47 percent of Americans approve of Mueller’s investigation, and 66 percent want him to end it before the November election, which almost certainly will not happen. Trump’s attacks also appear to have caused Mueller to adopt a cautious approach. For example, Mueller revealed the parameters of his investigation of Trump to his legal team and agreed to notify Trump’s lawyers before expanding the inquiry. That is a very unusual step for a federal prosecutor to take.
Despite the assault from Trump and his allies, Mueller’s team has continued its work, racking up significant indictments and convictions. But until yesterday, none of those charges altered the “Witch Hunt” narrative that permeates conservative media and is echoed by Republican lawmakers. For example, when Mueller obtained an unprecedented indictment of Russian intelligence operatives who hacked into U.S. electoral systems and tried to undermine our election, Republicans responded by calling for the Mueller investigation to end.
This week’s events could have gone much differently. Trump and his allies intended to attack the Mueller investigation if the Manafort verdict went their way. But even the Manafort convictions, on their own, likely would not have derailed Trump’s narrative. Trump’s team has dismissed the charges against Paul Manafort, his former campaign chairman, as unrelated to Trump. Similarly, the White House planned to write off the Cohen prosecution as the product of his own taxi cab businesses.
One reason Trump’s strategy has worked well is that there is a widespread belief that the point of the Mueller investigation is to undercover “collusion” with the Russians. But the term “collusion” has no legal meaning in this context, and as a result, no one can agree on its meaning. When Mueller charged Manafort with conspiring with a suspected Russian intelligence operative, his former business partner in Ukraine, I might have been the only person wondering if that was “collusion.”
More recently, the indictment of Russian spy Maria Butina alleged that an American worked with her “for the purpose of advancing the interests of the Russian Federation,” yet there was little public debate about this apparent “collusion.” There has been intense debate about whether the infamous Trump Tower meeting between top Trump campaign officials and Russian agents was “collusion,” but the differing views of that meeting underscores the problem: Because the meaning of the word “collusion” is ambiguous, whether something is “collusion” is in the eye of the beholder.
Trump has used that ambiguity to his advantage, proclaiming “No Collusion!” as proven ties between his campaign and Russia have multiplied. Even on Tuesday, after the Manafort and Cohen convictions, Trump echoed that claim. It is unlikely that an indictment of longtime Trump adviser Roger Stone for his involvement in the Russian hacking effort — which Mueller appears to be working toward — would deter Trump from advancing his “no collusion” narrative. He’s committed to it, because it’s working.
Cohen’s statement Tuesday was powerful because it sidestepped the “collusion” red herring. Cohen told the judge that Trump directed him to commit a serious crime, but the crime had nothing to do with Russia and the prosecutors in the courtroom did not work with Mueller. For that reason, Trump’s usual attacks wouldn’t work. Cohen’s statement about Trump is powerful even if one believes there is “No Collusion” and Mueller’s team is compromised of “Angry Democrats.”
What has always mattered about the Mueller investigation is whether Mueller could find sufficient evidence that federal crimes were committed, regardless of whether they can be dubbed “collusion.” Despite Cohen’s statement, the strongest evidence that Trump committed a crime remains his obstruction of justice — I concluded in January that Mueller would find that Trump obstructed justice, and the evidence has grown stronger since then. Obstruction of justice is a serious crime regardless of whether there is an underlying offense.
But in the end, what will matter is whether members of Congress believe obstruction of justice — or other crimes uncovered by Mueller — is a “high crime or misdemeanor” that warrants impeachment. That matters because the Justice Department has concluded that a sitting president cannot be indicted, even though that is an open question. Mueller will follow that guidance and submit a report to Congress instead of obtaining an indictment of Trump.
Trump’s team reportedly believes the fact that Trump won’t be indicted is their ace in the hole. It’s easy to see why — Trump’s disinformation strategy has convinced the Republican base that Mueller’s investigation is illegitimate, and Trump has good reason to believe that his base will stick with him no matter what Mueller uncovers. The votes of 67 senators are required to remove a president from office, and at this time it is hard to imagine 19 Republican senators voting against Trump.
In an earlier era, that would not have been true. In 1974, Republicans led by Barry Goldwater told Richard Nixon that he no longer had Republican support, which led to Nixon’s resignation. But in that age, Democrats dominated both houses of Congress — and most Americans could choose between three television networks and one or two newspapers as their news sources. Today, with limitless options, Americans don’t work off the same set of facts. Trump’s base gets their news from him and his allies, while Trump attacks the free press and his lawyer, Rudy Giuliani, proclaims that “truth isn’t truth.”
Tuesday’s statement by Cohen was a jiujitsu move that evaded Trump’s disinformation campaign, and it might not be the last such move. More evidence of crimes that don’t fit Trump’s narrative could weaken the resolve of Trump’s base, or cause some high-profile Republicans to break with the president. Or a Democratic victory in November, along with a stronger PR campaign by Democrats on corruption and impeachment, could ultimately sway enough Republicans to make a difference.
That is what the survival of the Trump presidency comes down to. If Trump has 34 Republican votes in the Senate, he can pardon his friends and associates with impunity and he need not fear an indictment in the upper chamber until 2021 at the earliest. Even if Trump loses the 2020 election, he could step down and have Vice President Mike Pence pardon him before he leaves office. Any limits on Trump’s pardon power are untested. It’s not clear if New York’s attorney general will come riding to the rescue, either: State prosecutors cannot charge obstruction of a federal investigation and are unaccustomed to charging complex financial crimes.
So it will take a significant shift among Republican senators — or the next presidential election — to remove Trump from office. Tuesday’s drama suggests that Trump is still vulnerable to sudden shifts in the legal narrative, but ultimately his fate will be decided in the political arena, not a courtroom.