The assertion by President Donald Trump’s former lawyer that he broke campaign finance laws at the direction of then-candidate Trump could spark calls for impeachment hearings — but probably will not have any legal consequences for the president while he is in office, according to legal analysts.
Michael Cohen, who spent a decade as a lawyer for Trump, told a judge Tuesday that he was directed by Trump to coordinate payments to two women designed to prevent them from disclosing alleged affairs with the real estate mogul before the presidential election, in violation of campaign finance law.
Such an explosive assertion against anyone but the president would suggest that a criminal case could be in the offing, but under long-standing legal interpretations by the Justice Department, the president cannot be charged with a crime.
The department produced legal analyses in 1973 and 2000 concluding that the Constitution does not allow for the criminal indictment of a sitting president.
Those opinions have never been tested in court, and doing so would require a prosecutor to buck the department’s guidance and attempt to bring charges anyway.
In comments to reporters after Cohen pleaded guilty to eight felony counts in federal court in Manhattan, Deputy U.S. Attorney Robert Khuzami said prosecutors were sending a message that they are unafraid to file charges when campaign finance laws are broken. But he did not mention Trump or offer any indication that his office planned to pursue action against the president.
Likewise, special counsel Robert Mueller determined months ago that allegations of campaign finance violations involving payments to women before the presidential election were outside the scope of his mandate to investigate whether the Trump campaign coordinated with Russia’s operation to influence the vote.
That would leave impeachment as the more likely avenue for holding Trump accountable for his role in campaign finance violations in 2016, an unlikely outcome while Republicans hold Congress but a potential agenda item for Democrats should they take control of the House after the midterm elections.
Democrats are split over whether calling for Trump’s impeachment is politically astute before November. But Cohen’s plea could revise that calculation and pressure Democrats to promise to launch hearings should they win the House, which has the constitutional authority to initiate impeachment proceedings.
“This is a very big deal. The president of the United States has been directly implicated in federal crimes, and implicated not by some enemy but by his own personal lawyer,” said Neal Katyal, a former U.S. solicitor general in the Obama administration and now a white-collar criminal defense attorney at the firm Hogan Lovells.
He said it was the first time the nation had faced a similar situation since Watergate, and he predicted it would launch “the call for impeachment proceedings.”