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Prosecutors’ Narrative Is Clear: Trump Defrauded Voters. But What Does It Mean?
In the narrative that prosecutors are building, President Trump continued to secretly seek to do business in Russia well into his presidential campaign even as Russian agents made more efforts to influence him.
Credit
Al Drago for The New York Times


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In the narrative that prosecutors are building, President Trump continued to secretly seek to do business in Russia well into his presidential campaign even as Russian agents made more efforts to influence him.CreditCreditAl Drago for The New York Times
By Peter Baker and Nicholas Fandos
Dec. 8, 2018

WASHINGTON — The latest revelations by prosecutors investigating President Trump and his team draw a portrait of a candidate who personally directed an illegal scheme to manipulate the 2016 election and whose advisers had more contact with Russia than Mr. Trump has ever acknowledged.

In the narrative that the special counsel, Robert S. Mueller III, and New York prosecutors are building, Mr. Trump continued to secretly seek to do business in Russia deep into his presidential campaign even as Russian agents made more efforts to influence him. At the same time, in this account he ordered hush payments to two women to suppress stories of impropriety in violation of campaign finance law.

The prosecutors made clear in a sentencing memo filed on Friday that they viewed efforts by Mr. Trump’s former personal lawyer, Michael D. Cohen, to squelch the stories as nothing less than a perversion of a democratic election — and by extension they effectively accused the president of defrauding voters, questioning the legitimacy of his victory.

On Saturday, Mr. Trump dismissed the filings, and his lawyer, Rudolph W. Giuliani, minimized the importance of any potential campaign finance violations. Democrats, however, said they could lead to impeachment.

In the memo in the case of Mr. Cohen, prosecutors from the Southern District of New York depicted Mr. Trump, identified only as “Individual-1,” as an accomplice in the hush payments. While Mr. Trump was not charged, the reference echoed Watergate, when President Richard M. Nixon was named an unindicted co-conspirator by a grand jury investigating the cover-up of the break-in at the Democratic headquarters.

“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,” the prosecutors wrote.

“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,” they continued. “In the process, Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election.”

The exposure on campaign finance laws poses a challenge to Mr. Trump’s legal team, which before now has focused mainly on rebutting allegations of collusion and obstruction while trying to call into question Mr. Mueller’s credibility.

“Until now, you had two different charges, allegations, whatever you want to call them,” Representative Jerrold Nadler of New York, the incoming Democratic chairman of the House Judiciary Committee, said in an interview on Saturday. “One was collusion with the Russians. One was obstruction of justice and all that entails. And now you have a third — that the president was at the center of a massive fraud against the American people.”

The episode recalled a criminal case brought against former Senator John Edwards, Democrat of North Carolina, who while running for president in 2008 sought to cover up an extramarital affair that resulted in pregnancy. He was charged with violating campaign finance laws stemming from money used to hide his pregnant lover, but a trial ended in 2012 with an acquittal on one charge and a mistrial on five others.

Mr. Giuliani pointed to that outcome on Saturday to argue that the president should not be similarly charged.

“The President is not implicated in campaign finance violations because based on Edwards case and others the payments are not campaign contributions,” Mr. Giuliani wrote on Twitter. “No responsible prosecutor would premise a criminal case on a questionable interpretation of the law.”

But Mr. Cohen has pleaded guilty under that interpretation of the law, and even if Mr. Trump cannot be charged while in office, the House could still investigate or even seek to impeach him. The framers of the Constitution specifically envisioned impeachment as a remedy for removing a president who obtained office through corrupt means, and legal scholars have long concluded that the threshold of “high crimes and misdemeanors” does not necessarily require a statutory crime.

If the campaign finance case as laid out by prosecutors is true, Mr. Nadler said, Mr. Trump would be likely to meet the criteria for an impeachable offense, and he said he would instruct his committee to investigate when he takes over in January.

But he added that did not necessarily mean that the committee should vote to impeach Mr. Trump. “Is it serious enough to justify impeachment?” he asked. “That is another question.”

The strategy of Mr. Trump’s lawyers has been predicated on the assurance by senior Justice Department officials that if Mr. Mueller found evidence that the president broke the law, he would not be indicted while in office. But the hush money investigation is being led by a separate office of prosecutors in New York, and far less time has been spent publicly or privately trying to protect Mr. Trump from that inquiry.

And while the prevailing view at the Justice Department is that a sitting president cannot be indicted, that does not mean a president cannot be charged after leaving office. The prosecutors in New York have examined the statute of limitations on the campaign finance violations and believe charges could be brought against Mr. Trump if he is not re-elected, according to a person briefed on the matter.

Representative Jerrold Nadler, the top Democrat on the House Judiciary Committee, said that if the campaign finance case as laid out by prosecutors was true, Mr. Trump would likely meet the criteria for an impeachable offense.
Credit
J. Scott Applewhite/Associated Press


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Representative Jerrold Nadler, the top Democrat on the House Judiciary Committee, said that if the campaign finance case as laid out by prosecutors was true, Mr. Trump would likely meet the criteria for an impeachable offense.CreditJ. Scott Applewhite/Associated Press
Mr. Trump’s lawyers view that as unlikely if it is based solely on the current charges.

At the White House on Friday evening, staff members gathered for a holiday dinner with Mr. Trump and the first lady as if nothing were wrong. Mr. Trump’s advisers have told him that the latest filings do not present a danger to him legally, although they cautioned him that the political risks were hard to calculate, according to people familiar with the discussions.

One adviser said the president’s team had concluded that Mr. Trump was not likely to face a threat from prosecution in the New York case because if Mr. Cohen had more to deliver, then prosecutors would not be bringing him to court for sentencing in the coming week or requesting substantial prison time. Another adviser said that the Cohen threat appeared to be over.

For public consumption, at least, Mr. Trump and his Republican allies chose to focus on the Russia matter on Saturday, arguing again that no wrongdoing had been proved.

“On the Mueller situation, we’re very happy with what we are reading because there was no collusion whatsoever,” Mr. Trump told reporters at the White House. “The last thing I want is help from Russia on a campaign. You should ask Hillary Clinton about Russia.”

American intelligence agencies have said the Russians were in fact trying to aid Mr. Trump’s candidacy.

Representative Jim Jordan of Ohio, who will be the top Republican on the House Oversight and Government Reform Committee in the new Congress, which begins next month, said he saw no reason conservatives should walk away from Mr. Trump given his record of policy achievements and questions about the impartiality of the president’s investigators.

“I always come back to the facts,” he said in an interview. “To date, not one bit of evidence of any type of coordination or conspiracy between the Trump campaign and Russia to influence the election.”

If prosecutors have conclusive evidence of conspiracy, they have not shown their hand. But the filings in recent days made clear that while Mr. Trump repeatedly insisted he had no business dealings in Russia, it was not without trying.

Mr. Trump’s business was pursuing a proposed Trump Tower in Moscow until June 2016, while Mr. Trump was locking up the Republican nomination and long after Mr. Cohen had previously said the project was dropped.

At the same time, Mr. Cohen, starting in November 2015, was in contact with a well-connected Russian who proposed “synergy on a government level” with the Trump campaign and proposed a meeting between Mr. Trump and President Vladimir V. Putin of Russia. The Russian said such a meeting could grease the way for the tower, telling Mr. Cohen that there was “no bigger warranty in any project than consent” by Mr. Putin.

In his own court memo, Mr. Mueller said that Mr. Cohen’s false account that the deal had collapsed in January 2016 was designed “in hopes of limiting the investigations into possible Russian influence on the 2016 U.S. presidential election — an issue of heightened national interest.”

The president’s lawyers have been deeply concerned that Mr. Trump could be portrayed as an unindicted co-conspirator in court documents. As he was preparing to submit written responses to questions from Mr. Mueller last month, Mr. Trump’s lawyers learned about language the special counsel wanted to include in a plea agreement with a conservative conspiracy theorist, who was under investigation for his links to WikiLeaks, which released Democratic emails that intelligence agencies said were stolen by Russian agents.

The document said that the conspiracy theorist, Jerome Corsi, understood that one of Mr. Trump’s associates, Roger J. Stone Jr., was “in regular contact with senior members of the Trump campaign, including with then-candidate Donald J. Trump,” when Mr. Stone asked Mr. Corsi to find out from the head of WikiLeaks what he had in store for the Clinton campaign.

Mr. Trump’s lawyers feared that Mr. Mueller was trying to cast Mr. Trump as an unindicted co-conspirator. Mr. Trump’s lawyers held off sending the answers and demanded a meeting with Justice Department officials and Mr. Mueller’s team, according to one person close to the president.

In a meeting at the Justice Department that was presided over by the principal associate deputy attorney general, Ed O’Callaghan, Mr. Trump’s lawyers — including Mr. Giuliani and Jay Sekulow — expressed concern to Mr. Mueller’s team. It was unclear what Mr. Mueller’s team said in response, but shortly thereafter Mr. Trump sent in his answers.

Mr. Corsi has declined to accept a plea deal and has not been charged with a crime.

Although Mr. Trump asserted on Saturday that he was “happy” with the latest filings, others did not agree. The Cohen information alone “puts impeachment on the table, and I can’t help but think that that is what this is barreling toward,” said Rob Stutzman, a California-based Republican strategist who has been critical of Mr. Trump. “Any other presidency at this point would have been done when their own Department of Justice filed something like that.”

But while the House can impeach a president on a majority vote, conviction in the Senate requires a two-thirds vote, meaning that unless at least 20 Republican senators abandon Mr. Trump, he is safe from removal. Despite the losses in the House last month, Republicans, if anything, have moved closer to the president.

While liberals are pressing Democrats to move on impeachment, party leaders remain wary, fearing a backlash. Representative Jamie Raskin of Maryland, a Democratic member of the Judiciary Committee, said the standard set during the impeachment of President Bill Clinton for lying under oath certainly puts Mr. Trump “in impeachment territory” because of the campaign finance issue.

“On the other hand,” he added, “in the compendium of Donald Trump’s offenses against the rule of law and the Constitution, this may not be in the top five.”

Maggie Haberman contributed reporting from New York, and Michael S. Schmidt from Washington.

A version of this article appears in print on Dec. 9, 2018, on Page A1 of the New York edition with the headline: Exposure on Election Laws a Challenge to Trump. Order Reprints | Today’s Paper | Subscribe

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