A Justice Department Coup?
Justice Department careerists, led by special counsel Robert Mueller and Deputy Attorney General Rod Rosenstein, have now served notice that they are targeting the presidency of Donald J. Trump.
Not over his behavior regarding Russians, which was their legal rationale for rooting through the business dealings and personal lives of his campaign manager, lawyer, and family. No, prosecutors are seeking to criminalize Trump’s extracurricular activities with American women, two in particular: Stormy Daniels and Karen McDougal.
This would be laughable if people weren’t going to prison as a result, not to mention its subversion of democratic self-government. If it succeeds in driving Trump from office, it will set not merely a grim precedent for future elections. It will be a clear and present danger to every person in this country.
Stormy Daniels (real name Stephanie Clifford), the porn star with a problematic attorney, claimed a single sexual encounter with Donald Trump in 2006, before he entered politics. Trump apparently took up the same year with Karen McDougal, a former preschool teacher who posed nude for Playboy magazine. McDougal said she had a nine-month affair with the future president.
There is no reason to doubt either account, and in 2016, both women sensed an opportunity to profit from the experience. McDougal was paid $150,000 by Trump crony David Pecker, owner of the National Enquirer, the pro-Trump supermarket tabloid, which never ran her story. Daniels’ deal was more direct: She was given $130,000 to keep quiet.
Although both women took the money, as Trump became a viable presidential nominee, they decided they’d missed the art of the deal. Apparently thinking they’d settled for too little, they started singing. For his part, the president retreated to the wayward husband’s default position, which is to say, he lied. His lawyer, Michael Cohen, joined in these denials, notwithstanding that he was the bag man who paid the ladies off.
What, you ask, does this have to do with Russian interference in the 2016 election? Well, nothing, but there are people who care deeply about the technicalities of election spending. One of them, liberal activist Paul S. Ryan of Common Cause, complained to the Justice Department and the Federal Election Commission that Trump had violated campaign finance laws by paying off Daniels. This constituted a campaign contribution, he said. If it came from Michael Cohen, it exceeded the legal limit of $2,300. Even it came from Trump, he added, under federal expenditure rules it should have been reported to the FEC because it was done to help a candidacy. Kind of defeats the purpose of non-disclosure agreements, doesn’t it?
Even if this was a violation, it could have, and should have, been handled by the FEC in a civil enforcement action, as violations of Barack Obama’s campaign were. But if you thought Mueller was going to ignore it and keep his eye on the ball – remember, he’s supposed to be looking at a possible conspiracy between the 2016 Trump campaign and Vladimir Putin – you don’t know his record.
As former FBI director, Mueller is the guy who personally botched the federal investigation into the 2001 anthrax attacks. Buckling to political pressure from Capitol Hill, Mueller focused on an innocent suspect. The Justice Department leaked his name, too, which added to the amount ($6.8 million) U.S. taxpayers shelled out when his name was finally cleared. Mueller’s comrade in that ill-fated caper was James Comey, the fired FBI director whose leaking and other sly machinations led to the appointment of a special counsel in the first place.
Some wanted to give Mueller the benefit of the doubt. But that hope was dashed in the predawn raid at the home of former Trump campaign manager Paul Manafort. Sixteen armed agents arrived without notice before the sun was up, letting themselves in with a key they’d obtained and ransacking his personal papers and computer.
FBI agents similarly raided Cohen’s home and office, although Mueller handed off this part of the case to the U.S. Attorney’s Office in Manhattan. Cohen has pleaded guilty to three felony counts, two of them campaign finance violations. A federal judge gave him three years in federal prison. The court filings said Cohen was acting at the direction of “Individual-1,” who everybody knew to be Trump, meaning that the president is now the unindicted co-conspirator of a convicted felon.
Why didn’t Cohen fight this indictment based on a dubious legal theory? Apparently, like Paul Manafort, he’d been cheating on his taxes, an easier charge to prove, and one carrying lengthier prison terms.
Now a new precedent has been set, with troubling ramifications. For starters, prosecutors and judges are now expanding the criminal law on their own volition. Justice Department prosecutors tried this gambit once before and a jury laughed it out of court. It happened in the 2012 trial of John Edwards, a former North Carolina senator and Democratic presidential candidate. Edwards had orchestrated payments from wealthy donors of $1 million to his girlfriend who’d had a baby -- while Edwards wife was dying of cancer. Not content to let Edwards’ derailed career be his punishment, federal prosecutors charged him with six felony counts. A jury acquitted him of one count and deadlocked on the others, with most jurors favoring acquittal.
Prosecutors had asserted that Edwards violated a “very simple” campaign law limiting donations to $2,300 per person. But even though the woman was on Edwards’ campaign staff, the money she was paid was not used for political ads, funding polls, or hiring campaign staff, which is what the law is really regulating. “The jury saw right through it,” campaign finance expert Ken Gross told reporters.
Tellingly, the FEC had not ruled that Edwards’ expenditures violated the law. Under the precedent set in Cohen’s case, a candidate who got his teeth fixed, or had lap band surgery, or settled a lawsuit for Trump University – that is, anything that might help a campaign -- is now committing a felony unless it’s reported publicly.
The ghost of Christmas past here is the example of President Clinton. No, he wasn’t charged criminally for lying about his sexual liaisons in the Oval Office with an unpaid White House intern but he was impeached over it. That’s what House Democrats are already discussing.
They might want to ask themselves: How did that work out for Republicans? In that case, the “jury” was the 1998 midterm electorate – which sided with Clinton. In the #MeToo era, Democrats might ask themselves which is worse: Trump’s habit of paying lovers to remain silent, or Team Clinton’s go-to strategy, which was to smear the reputations of Bill’s women.
There’s a Ghost of Christmas Future, too. A year ago, the federal Office of Compliance revealed that in the previous 20 years it had spent $17 million in taxpayer money to settle 260 cases of job-related claims against members of Congress and other officials and agencies in the legislative branch. Nobody in the government would say how many were sex cases, although this slush fund came to light after the disclosure of two cases of sexual misconduct against sitting members of Congress.
Will such settlements – or any non-disclosure agreements -- now be considered felonies? What other imaginative expansion of criminal law will prosecutors and judges concoct? Are Democrats willing to live with this precedent, which won’t die when Trump leaves office? Are Republicans? Are the American people? Because if they can to do it to a president, they can do it to you.