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Legal experts divided on what happens next after Cohen's plea

Michael Cohen leaves a federal courthouse in Manhattan

Michael Cohen leaves a federal courthouse in Manhattan on Aug. 21 after reaching a plea agreement with investigators. Credit: Charles Eckert

In the wake of attorney Michael Cohen’s guilty plea in Manhattan federal court on Tuesday to breaking campaign finance laws “at the direction” of ex-client President Donald Trump, legal experts were in broad agreement on what won’t happen next, but had little consensus on what will.

Although Cohen appeared to implicate Trump in hush money payments to porn star Stormy Daniels and model Karen McDougal that violated federal limits on campaign contributions, Trump will almost certainly not face a federal criminal indictment, lawyers say.

The reason: Trump appears to be protected by a Justice Department policy that prohibits the indictment of a sitting president. While Manhattan prosecutors could use a grand jury to continue to build a case for the time after Trump leaves office, experts said, the more likely prospect would be possible impeachment hearings in Congress.

“History, practice and tradition strongly suggest that the United States attorney will not be indicting Donald Trump regardless of where these facts lead, but an impeachment inquiry is another story, ” said Joel Weiss, a former Nassau County prosecutor who now serves as a federal white collar defense attorney for the Farrell Fritz law firm in Uniondale.

If the hush-money case does surface again — either in an impeachment proceeding or after he leaves office — Cohen’s allegations in court by themselves would put the president in jeopardy, lawyers say, because Cohen acknowledged that the $130,000 he paid and the $150,000 he arranged from the National Enquirer were designed to influence the 2016 campaign.

That would make them campaign contributions, violating both limits on the amount of a contribution and a ban on corporate donations. But Trump might still have some wiggle room, experts say, because he might claim that he made the payments for personal reasons to protect his family, and prosecutors would have to disprove it.

“It’s a knowing and willful standard,” said Alex Whiting, a former federal prosecutor who teaches criminal law at Harvard Law School. “Trump could say he didn’t think it was campaign related, or he didn’t know it was a campaign finance violation . . . Those defenses are possible.”

While ignorance of the law is usually not a defense, it can be in election law cases, said Rick Hasen, a campaign finance-law expert at the University of California-Irvine law school.

“It has to be willful to be criminal,” said Hasen. “In order for it to be criminal instead of civil, he would have to know it was a violation, an illegal contribution.”

Even though Trump is shielded from being indicted while in office, some lawyers say he is not protected from testifying before a grand jury, or in a civil lawsuit.

Eric M. Freedman, a professor of constitutional law at Hofstra University, said Trump could be compelled to answer questions before a grand jury in the Cohen case as well as in special counsel Robert Mueller’s Russia probe, “because in a number of situations throughout American history, the courts have insisted that the president testify.”

Freedman cited as an example Ronald Reagan agreeing to testify about his knowledge of the Iran-Contra affair. A federal court judge presiding over the trial of Reagan’s former national security adviser, John Poindexter, ruled in 1990 that Poindexter’s attorneys were “entitled to take the videotaped deposition of former President Reagan concerning his conduct in office, but under the supervision of the trial judge.” Reagan initially objected to testifying about the covert sale of weapons to Iran, but later dropped his legal challenge.

“It wouldn’t be at all surprising if you see the next chapter play out in the witness scenario rather than the indictment scenario,” said Freedman.
There are even stronger precedents for calling Trump to testify in civil cases, lawyers say. In 1997, the Supreme Court, presiding over the sexual harassment lawsuit brought by Paula Jones against President Bill Clinton, ruled that a sitting president could be made to answer questions as part of a civil lawsuit.

Daniels’ lawyer Michael Avenetti, who has filed a lawsuit in Los Angeles federal court seeking to void Daniels’ nondisclosure agreement with Trump, insisted on Twitter that Cohen’s guilty pleas “permit us to proceed with an expedited deposition of Trump under oath about what he knew, when he knew it, and what he did about it.”

So far, Trump has been reluctant to testify in Mueller’s probe amid ongoing negotiations between his personal legal team and the special counsel’s office to arrange for a sit-down interviews. Trump’s personal attorney Rudy Giuliani has said the president’s lawyers will fight any attempts to subpoena Trump.

Giuliani told the Washington Post last week that Trump’s legal team was prepared to “argue it before the Supreme Court, if it ever got there.”

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