Unindicted coconspirator ‘Individual 1’ escapes justice – for now

When Michael Cohen pleaded guilty in November 2018 to lying to Congress, the documents filed with his plea deal didn’t explicitly name the person on whose behalf he had lied. It called him “Individual 1.”

There was never any doubt that “Individual 1” was President Donald Trump. Michael Cohen: “Individual 1 is Donald J. Trump”:

[I]n his testimony before the House Oversight Committee Wednesday, Cohen has confirmed it.

“I pled guilty in federal court to felonies for the benefit of, at the direction of, and in coordination with ‘Individual 1,’” Cohen said, reading from his prepared statement. “And for the record: ‘Individual 1’ is Donald J. Trump.”

Trump was called “Individual 1” in Cohen’s case because it’s traditional for prosecutors not to name people who haven’t been indicted. The logic is that if they haven’t been indicted yet, they haven’t necessarily done anything wrong, so it’s unfair to damage their reputations by naming them in a criminal case.

Michael Cohen is now serving time in prison for a felony he committed “for the benefit of, at the direction of, and in coordination with” Donald J. Trump. If he was not currently president of the United States, Donald Trump would also have also been indicted as a co-conspirator.

Here is an actual felony crime under the criminal code, not one that requires a historian to explain the historical meaning of “high crimes and misdemeanors” for purposes of impeachment. If Congress wants to impeach, they have an unambiguous felony crime from which to proceed.

Now, there has been some speculation for the past week that Attorney General William “Coverup” Barr ordered the Southern District of New York (SDNY) to shut down this investigation. See, for example, The Palmer Report.

But Barr did not necessarily have to order the case shut down. It appears that SDNY ran the investigation to ground, and charged who they could. Donald Trump was not charged only because of the deeply misguided Office of Legal Counsel policy memorandum that says a sitting president cannot be charged with a crime while in office.

As Mark Sumner writes at Daily Kos, That Justice Department rule has saved Trump from indictment—again:

On Monday, federal prosecutors informed a judge that their investigation into Donald Trump’s efforts to suppress the stories of adult film star Stormy Daniels and nude model Karen McDougal was ending. The hush money scheme, which has already led to the conviction of Trump attorney Michael Cohen on two counts of campaign finance violations, was under investigation because it allegedly happened “in coordination with and at the direction of” Trump. All evidence produced showed that allegation to be true.

The Judge ordered the Unredacted Documents Released in Cohen Case. The documents establish that the FBI warrants show Trump’s close involvement in hush money effort:

Federal search warrants released Thursday detail how Donald Trump and his allies scrambled in the final weeks of the 2016 campaign to arrange a hush-money deal to hide his alleged affair and contain the fallout from related stories in the press.

The internal chaos consumed Trump, then-attorney Michael Cohen, campaign spokeswoman Hope Hicks and even reached campaign manager Kellyanne Conway, according to the documents unsealed by a federal court in New York.

The documents are the first time that the US authorities have identified Trump by name and allege his involvement at key steps in the campaign finance scheme. Authorities had previously referred to Trump in court filings as “Individual 1,” the person who directed Cohen to make the payments.

Prosecutors with the US attorney’s office in the Southern District of New York revealed in a letter filed Thursday that they had started — and closed — an investigation into whether any individuals “made false statements, gave false testimony or otherwise obstructed justice in connection with this investigation.”

The letter doesn’t say whose conduct prosecutors were reviewing but a footnote to the search warrant affidavit noted that Hicks said she had learned about the Stormy Daniels’ allegations in November, a month after the first of the calls. A person familiar with the matter said that is a reference to Hicks.

* * *

The documents show that immediately after the “Access Hollywood” tape came out in October 2016, there was a mad scramble inside the Trump campaign to contain the damage and suppress additional allegations of a sexual nature from reaching public view.

The day after the tape came out, campaign spokeswoman Hicks called Cohen and candidate Trump joined, according to the documents. From there Cohen, acting as a middleman, was involved in at least 10 telephone calls that day, some involving Trump and Hicks and others involving American Media Inc. executives David Pecker and Dylan Howard. AMI owns the National Enquirer tabloid.

Following the last of the calls, Howard sent a text to Cohen confirming the deal. “Keith will do it. Let’s reconvene tomorrow.” Keith is Keith Davidson, Daniel’s attorney, according to the court filing.

* * *

The communication between Cohen and Trump increased during this period, according to the FBI filing, which said previously Trump and Cohen had spoken “about once a month.”

The documents further reveal that Trump spoke with Cohen on the phone at least twice on the day that Cohen initiated a $131,000 wire transfer, money that would eventually make its way to Daniels.

The date was October 26, 2016, less than two weeks before the general election. Within 30 minutes of speaking to Trump, Cohen called up his bank, opened a new account, and transferred $131,000 to that new account. All the while, Cohen was also in communication with Daniels’ lawyer and giving him wiring instructions, according to the filings.

The timing is key because prosecutors have previously alleged that Cohen acted “in coordination with and at the direction” of Trump when he made the payments, which were illegal under federal campaign finance laws.

Two days later, on October 28, Cohen and Trump spoke just before noon for five minutes. That evening, according to the FBI, Davidson assured Cohen the settlement paperwork was nearly finalized. “all is AOK. I should have signed, notarized docs on Monday,” Davidson said in a text message to Cohen.

Davidson several days later confirmed to Cohen he had transferred some of the payment to Daniels. He also emailed Cohen an audio recording of Daniels saying she didn’t believe allegations made by another woman.

Cohen tried calling Trump and after he couldn’t reach him, he tried Conway. Conway called Cohen back and they spoke for six minutes, according to the documents. It is not clear what Cohen and Conway spoke about from the documents or what followed their conversation.

* * *

Prosecutors said in Thursday’s filing that they considered whether anyone had lied or obstructed the inquiry. While they don’t identify anyone by name, the FBI affidavit says that Hicks called Cohen in October and Trump joined the call. It says Trump was either conferenced into the call or it was transferred to him. Cohen spoke with Hicks at least two other times that day, including just before and after he spoke with AMI executives.

In a footnote to the court filing, the FBI agent writes that Hicks told a different FBI agent that she first learned of the Daniels’ allegations in November, one month later.

Hicks referred questions about whether she was confronted about possibly being charged with a crime to her lawyer. Hicks told CNN that she doesn’t believe anything in these documents contradict what she has previously said or testified to.

[D]espite recordings and transcripts showing that Trump was directing every stage of the illegal scheme, it appears that the investigation has ended with no further charges. And the reason seems to be that Department of Justice ruling that a sitting executive cannot be indicted.

As an aside, this also means that SDNY likely did not file an indictment under seal waiting for the day that Trump leaves office. That would violate the OLC policy memo.

As reported by USA Today, that DOJ rule—the same rule that shielded Trump from charges of obstruction in the Mueller report—was “a factor” in ending the investigation without charges against Trump. No one is saying whether that was the only factor, but … it was the only factor. The case against Trump was beyond ironclad. Even Trump attorney Jay Sekulow will not comment except to say that the investigation is over. In the words of Lindsey Graham, case closed, and that’s all you need to know.

But if the attorneys are not talking, House Intelligence Committee Chair Adam Schiff is. “The inescapable conclusion from all of the public materials available now is that there was ample evidence to charge Donald Trump with the same criminal election law violations for which Michael Cohen pled guilty,” said Schiff.

Recordings made by Cohen show that Trump was not only aware of the scheme, but negotiating the details and instructing Cohen on the steps to take. Trump even involved members of his campaign staff, including Hope Hicks, in the scheme, going back and forth with Cohen on details of both how to deceive the women and how to hide the source of the funds.

Now, Cohen has been convicted, Hicks seems likely to be charged with lying to Congress, but the DOJ is letting Trump skate—all based on a rule it created.

Cohen, from prison, continues to issue statements about Trump’s involvement. “I and members of The Trump Organization were directed by Mr. Trump to handle the Stormy Daniels matter; including making the hush money payment,” wrote Cohen on Thursday. “The conclusion of the investigation exonerating The Trump Organization’s role should be of great concern to the American people and investigated by Congress and the Department of Justice.”

It’s seems unlikely that the Department of Justice will comment at all, since, under the interpretation that was used in the special counsel investigation, even admitting that Trump could have been indicted is off the table.

It seems, as far as the DOJ is concerned, that Trump really could shoot someone on Fifth Avenue. On television. With witnesses. And while someone else might be charged as an accessory, Trump would walk away with not one word said against him.

There is not currently a tolling statute which tolls a statute of limitations for crimes committed by the president. Who knew we needed one? Trump needs to get reelected for the statute of limitations to run on this crime. A Democratic administration with a new attorney general could have SDNY reopen its case and charge “private citizen” Donald Trump as a coconspirator, for the very same crime for which Michael Cohen is now serving time, the day after he leaves office. Fairness in our justice system would seem to require it.

Of course, our lawless president could always issue himself a pardon on his way out the door to create a whole new constitutional crisis as to whether the president’s pardon power can be used to preemptively obstruct justice in the president’s own impending indictment as a private citizen after leaving office.

While the answer to this question should appear obvious — nemo judex in causa sua, a Latin phrase which means, literally, “no one should be a judge in his own case” — just remember the conservative majority on the U.S. Supreme Court that, in several decisions this past term, effectively argued that “the law is whatever we say it is.” Republican corruption runs wide and deep.