by Andrew P. Napolitano
It seems that every time we look at the legal
maneuverings that reflect upon President Donald Trump, the allegations of
unlawful behavior by him add up. We know that two teams of federal prosecutors
are examining his pre-presidential and his in-office behavior.
Special counsel Robert Mueller is investigating whether
Trump and his campaign reached an agreement with any foreign nationals —
particularly Russians — to receive anything of value and whether he obstructed
justice by trying to shut down an FBI investigation of his first national
security adviser, retired Lt. Gen. Michael Flynn. And federal prosecutors in
Manhattan are looking at bank fraud and campaign financing fraud.
The receipt by a campaign for federal office of anything
of value from a foreign national is a criminal act, as is an agreement to
receive the thing of value from a foreign national, whether or not it arrives.
As is the case with nearly all federal crimes, one can be prosecuted for
committing the crime itself or, when others are involved, for conspiring to
commit the crime or for attempting to commit it.
The career federal prosecutors in New York have told a
federal judge that they have evidence that Trump conspired with Michael Cohen,
his former lawyer, and David Pecker, his former friend who owns the National
Enquirer, to violate campaign finance laws. They have also told the judge that
Trump orchestrated Cohen's crimes and paid Cohen to commit them. The
prosecutors know that he who pays for crimes can be as criminally liable as he
who accepts the payment and commits the crimes.
What were the crimes? They consisted in hiding illegal
campaign receipts and expenses from federal regulators and deceiving them. The
receipts were corporate donations — prohibited under federal law. The expenses
were payments made to two women who claim to have been paramours of Trump's —
claims he has repeatedly denied — in return for their silence in the fall of
2016, all done to benefit Trump's presidential campaign.
Had these receipts and payments been innocent mistakes or
clerical errors, they could have been addressed with fines and returning the
money — about $350,000 — to the donors. They became criminal because the
donations were part of an elaborate scheme of cooked books and phony invoices
to deceive federal regulators, and they resulted in the Trump campaign's filing
false reports to the feds. All of this was done, according to federal
prosecutors, knowingly and intentionally pursuant to a conspiracy among Trump,
Cohen and Pecker.
What became of the conspirators? Cohen infamously pleaded
guilty to this and other crimes and was sentenced to three years in a federal
prison. When Trump learned that his former lawyer had been debriefed by the FBI
for 70 hours, Trump called him a "rat." Pecker received a form of immunity
from prosecution in return for his testimony to federal prosecutors and to a
federal grand jury about Trump and Cohen.
It is highly unusual for federal prosecutors to
characterize a person who is not a defendant in their case as the orchestrator
and paymaster of the crimes they are prosecuting, unless they intend to charge
that person. Such a person — here, the president — is often referred to as an
"unindicted co-conspirator."
Can Trump be charged with these crimes? Has he been, in a
sealed indictment? The Department of Justice has three modern-day legal
opinions on the subject of charging a president. Two of them say that a
president cannot be charged with a crime while in office, and one says that a
president can be charged.
All three opinions counsel that if a statute of
limitations — the period of time after the crime has been committed and during
which a prosecution must be commenced or waived — is about to expire, the
president may need to be indicted in secret, so as to preserve the government's
ability to prosecute him for his crimes after he leaves office yet also
preserve the president's ability to conduct the duties of his office unimpeded
by the burdens of a criminal prosecution.
The statute of limitations in this case is five years.
The conspiracy took place in 2016. The math for Trump is daunting.
Why should you care about this? The president is the
chief federal law enforcement officer in the land. He has sworn an oath to
enforce all laws faithfully. If he is a lawbreaker himself, he violates his
oath, making it difficult for the legal, judicial and law enforcement
communities to take his enforcement decisions seriously.
This week, Flynn was due to be sentenced for lying to the
FBI. (His sentencing was postponed.) Though it may appear at first to have been
a little white lie and though the FBI no doubt knew it was a lie at the time
Flynn articulated it, it turns out that Flynn was also a paid foreign agent for
Turkey — a spy, if you will, for an ally we currently have a strained
relationship with — while working in the Trump campaign. Had U.S. District
Judge Emmet Sullivan not skeptically approached the sentencing of Flynn, we
might not know any of this. Did Donald Trump know any of this when he hired
Michael Flynn?
The rule of law in America is what keeps us free from
tyranny. The rule of law — which the president has sworn his solemn oath to
support — means that no one is above the law's requirements or below its
protections. It also means that those who make law enforcement decisions have a
public commitment to obeying the law.
Short of that, we don't have the rule of law. We have the
rule of whoever is temporarily at the top of the heap.
Copyright © 2016 Judge Andrew P. Napolitano. All rights
reserved.
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