WASHINGTON — Is collusion a crime? Are President Donald Trump’s tweets about special counsel Robert Mueller’s probe evidence that he has attempted to obstruct the investigation as some Democrats claim? Does the recording released by Trump’s former personal attorney regarding a payoff to a Playboy model implicate or exonerate the president of any legal wrongdoing?
In the past few weeks, the president’s legal team has faced a whirl of legal questions tied to Mueller’s Russia probe and a separate federal investigation into the business dealings of his former longtime lawyer Michael Cohen. Legal experts say Trump’s lawyers in their recent lines of defense — including their assertion that collusion with Russia is not a crime — appear to be more focused on winning a public relations battle than a legal battle.
Bradley P. Moss, a Washington D.C.-based attorney specializing in national security law, said Trump’s most visible attorney, Rudy Giuliani, has spent the past weeks appearing on cable TV and Sunday political talk shows arguing that collusion is not a crime and that the Cohen tape clears the president of any legal wrongdoing, as a means of rallying Trump’s base of supporters should the president run into legal trouble.
“It’s very much a [public relations] and political strategy,” said Moss. “Giuliani is well aware, as is pretty much everybody in the legal community, that this will not end in the court when it comes to the president. This will end, if there’s any actual liability, with impeachment proceedings, and that’s a political process with everyone having their own political agenda, and it’s not necessarily based on the strict issues of law.”
Giuliani on July 30 declared in a pair of TV interviews that possible collusion between the Trump campaign and Russia was not a crime that could be found in the federal code. His argument was repeated a day later by Trump on Twitter, but a wide range of attorneys, from former federal prosecutors to white-collar criminal defense lawyers, have described the argument as misleading.
“The fact that the word doesn’t appear in federal criminal law is neither here nor there,” said Jens David Ohlin, vice dean and professor of law at Cornell Law School. “There are all sorts of criminal categories that would apply to this behavior and the most relevant one is conspiracy. When people talk about collusion what they’re usually referring to is some sort of collaboration, and a collaboration can be criminal in nature if it meets the definition of a conspiracy.”
Moss said while “there is no such crime as quote-unquote collusion, it’s a term of art, and what is a crime is the act of collusion in furtherance of other criminal activities . . . to say there is no crime, that’s simply false.”
Last week, after Trump took to Twitter to tell Attorney General Jeff Sessions he “should” stop the Russia investigation “right now,” congressional Democrats described the missive as evidence the president was attempting to intimidate his top Justice Department official into shutting down Mueller’s probe.
"This is an attempt to obstruct justice hiding in plain sight," said Rep. Adam Schiff, (D-California), the ranking Democrat on the House Intelligence Committee.
Giuliani quickly dispatched a statement to reporters indicating Trump’s tweet was not an official order to Sessions, but rather was an expression of his opinion. White House Press Secretary Sarah Huckabee Sanders told reporters: “The president is not obstructing, he is fighting back.”
Ohlin said the president’s tweets “are not themselves obstruction,” rather they could be used as “evidence in a larger obstruction case because they reveal what his intent is, and what his motivation is.”
“The tweet is evidence of his obsession with the Russia investigation and how intensely he wants to shut it down, and that would be a crucial part of an obstruction case,” Ohlin said.
Trump also has faced questions over his legal liability in a deal arranged by Cohen in the weeks before the presidential election aimed at silencing Playboy model Karen McDougal’s allegations of an affair with Trump.
In a brief recording, captured by Cohen in September 2016 and recently leaked to CNN, Cohen and Trump can be heard discussing a $150,000 payment to American Media Inc., the parent company of the National Enquirer, which had paid McDougal for the rights to her story. The company’s chairman and CEO, David Pecker, a Trump supporter, allegedly purchased the potentially damaging story with the intent to keep McDougal from sharing it with other outlets during the waning weeks of the election, according to The Wall Street Journal, which reviewed documents tied to the deal.
On the Cohen tape Trump can be heard saying “pay with cash,” prompting Cohen to say “no, no, no. I’ve got it.” Trump then is heard saying “check” before the tape abruptly cuts off.
Giuliani has said the tape provides “exculpatory” evidence favorable to Trump because Trump was directing Cohen to pay with a check to keep a record of the deal. Giuliani also has argued the deal did not violate any campaign finance laws that would have required the $150,000 payment to be reported because ultimately the financial transaction was never completed.
Mitchell Epner, a former federal prosecutor who now serves as a white-collar criminal defense attorney, said that despite Giuliani’s assertions, Trump could face some level of “criminal exposure” if investigators determine the deal indeed violated campaign finance laws.
American Media Inc.'s or Pecker’s purchase of the story could be viewed as an “in-kind donation” because it was meant to aid Trump before Election Day, said Epner, who works as an attorney for the Manhattan-based law firm Rottenberg Lipman Rich. Under federal law, corporations cannot contribute directly to a campaign, and if the $150,000 transaction was funded by Pecker, it would far exceed the $25,000 personal donation limit, Epner said.
“Since Trump knew about this $150,000 . . . he had a duty to include it in his Federal Elections Commission filings,” Epner said. “Willfully filing false failings is a felony . . . it doesn’t mean he would be charged. It doesn’t mean if he would be charged, he’d be convicted, but there is real criminal exposure here,” should the FEC refer the case to the Department of Justice for possible prosecution.