With Michael Cohen, Donald Trump’s onetime lawyer and “fixer,” sentenced Wednesday to three years in prison, it’s worth asking: What will be the verdict of history on his crimes? Specifically, the felony campaign-finance violations connected to the payoffs to two women who said they had sexual affairs with the future president? Cohen said the payoffs were directed by then-candidate Trump — and the prosecutors of the U.S. Attorney’s Office for the Southern District of New York agreed.
The answer depends on which of two competing paradigms for presidential wrongdoing the Cohen payoffs ultimately fall into.
For Trump’s critics, the paradigm is Watergate. While running for office, they will say, Trump knowingly directed a secret violation of campaign-finance laws. Then Trump and Cohen covered up their crimes by lying about the payments to adult film actress Stormy Daniels and former Playboy Playmate Karen McDougal and how they were structured and delivered.
For Trump’s defenders — including Trump — the paradigm is the Monica Lewinsky affair. Like President Bill Clinton, they will say, Trump engaged in sexual conduct that he wanted to keep secret. Like Clinton, runs the argument, Trump engaged in some mildly shady but understandable conduct to cover his tracks. An out-of-control special prosecutor tried to make the molehill into a mountain, but in essence, as Trump told Reuters, he “hasn’t done anything wrong.”
Which paradigm is closer to the truth? There are meaningful points of similarity in each.
One point for the Watergate side is that the unlawfully structured payments were squarely connected to Trump’s election campaign, just as the Watergate break-in was part of the campaign to re-elect President Richard Nixon in 1972.
Consider the specifics of the Daniels case. According to her detailed account, she and Trump had sex in 2006. But Trump didn’t seek to buy her silence until he was running for president in the fall of 2016. Thus, unlike Clinton, Trump wasn’t just trying to avoid embarrassment. He was trying to game the system to help get elected.
What’s more, the campaign-finance crimes were integral to the attempt to conceal the relationship for election purposes. Trump and Cohen were trying to hide that the candidate was paying off the porn star. That’s why they structured the payments so that Cohen would be making them and would only later get reimbursed by Trump or his organization. If Trump had just paid Daniels directly, it wouldn’t have been a crime at all.
Thus, the key to the Cohen-Watergate comparison is that the president ordered a subordinate to commit a federal crime as part of his bid for election. Cohen testified to that in court. The federal prosecutors indicated that they believe him.
Indeed, if Trump is not re-elected, it seems altogether possible that the federal prosecutors in New York will bring felony charges against him. They’ve already convicted Cohen, and it would be a strange act of favoritism if they didn’t charge the person whom they believe directed the crime, and for whose benefit it was committed.
Turning to the Lewinsky paradigm, the similarities lie in the sexual nature of the underlying conduct — and the understandable human impulse to want to conceal it from the public. It’s plausible that Trump wanted to keep Daniels silent because he thought that his getting elected president would give her an incentive to speak out, thus embarrassing him and his family. Seen through this lens, the election was the occasion for the payoff to Daniels, but Trump wasn’t paying off Daniels in order to get elected. He was hedging against the possibility that he would win and then be embarrassed.
Part of the reason that Democrats found it easier to forgive Clinton for lying under oath (and to the public) about his relationship with Lewinsky is the recognition that people lie about sex to avoid embarrassment. No one believes such lies are morally permissible or attractive, but they are a recognizable genre of human fallibility.
The other factor that makes the Cohen-Trump violations reminiscent of Clinton’s conduct is the somewhat technical nature of the crime at issue. What made the payoff to Daniels illegal was how Cohen and Trump made it — not that it was made at all. Somewhat similarly, Clinton’s lawyers defended his misleading answers under oath to independent prosecutor Ken Starr by saying he never exactly lied in response to ambiguous questions. In essence, they maintained, Clinton didn’t technically commit perjury, even if he kind of lied under oath when he denied a sexual relationship with Lewinsky.
If special counsel Robert Mueller doesn’t manage to connect the dots and show meaningful Trump campaign collusion with Russia during election, and if there is no impeachment proceeding brought against Trump, it seems likely that collective historical memory will move Trump’s Daniels-related conduct into the Clinton category. At a distance, we will not want to think that Watergate-level misconduct was simply ignored because the president was too popular to be impeached.
But if Mueller comes up with specifics and Trump is indeed impeached, the Cohen material will certainly become part of the impeachment proceedings. It will be difficult for Trump to defend himself now that Cohen is going to prison. And Cohen’s role in committing and covering up a campaign-finance felony at Trump’s direction will come to look like part of Watergate after all.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”