Things are heating up for President Donald Trump in the Russia investigation.
Trump’s former personal lawyer Michael Cohen has cut a plea deal with special counsel Robert Mueller, pleading guilty on Thursday to lying to Congress about Trump’s business dealings in Russia during the 2016 presidential campaign.
That comes just three days after Trump’s former campaign chair Paul Manafort’s plea deal with Mueller fell apart after he repeatedly lied to federal investigators about his business dealings with associates in Ukraine.
So what does this blizzard of news mean for Trump? Does the Cohen plea deal and the Manafort fiasco put Trump in even more legal jeopardy? If so, what are the president’s legal options moving forward? Will he have to pardon his way out of Mueller’s probe or perhaps dissolve the special counsel to avoid trouble?
To get some answers, I reached out to nine legal experts and asked them those very questions. Their full responses, edited for clarity, are below.
Joshua Dressler, law professor, Ohio State University
As things get worse for the president, his options grow more limited — and more extreme as well. He could try to end the investigation; he could pardon more people to give them a reason to stop cooperating with Mueller. But the fact is that these options would create considerable chaos, and much of the damage has already been done. And although Trump likes chaos, he only likes it if he thinks he will ultimately come through the chaos unscathed.
If Trump is rational, therefore, he will do nothing. He will rely on his supporters to continue sticking by him, and he will hope for the continued cowardice of the Republicans in the Senate to protect him if an impeachment someday occurs. But if Trump is not rational (and when has he been in regard to this investigation?), then all bets are off.
Renato Mariotti, former federal prosecutor, 2007 to 2016
It still remains unclear if Trump has significant criminal liability beyond obstruction of justice. Today’s charge against Michael Cohen indicates that Trump was negotiating a business deal and sought the aid of the Russian government while he ran for president, but that in itself is not a crime.
I concluded back in January that Mueller would conclude that Trump obstructed justice, and his conduct has become more brazen since that time. But I expect Mueller not to seek an indictment of a sitting president, given Department of Justice guidance, and instead present his findings in a manner that would enable Congress to act.
While Trump’s family members may have liability, he could issue pardons if they committed federal crimes, and impeachment would not result in Trump’s removal from office unless 20 Republican senators voted to convict him. So the greatest threat to Trump himself may be newly elected New York Attorney General Tish James, not Robert Mueller.
After all, Trump can’t pardon convictions for state crimes, and the Trump Organization is based in New York. The New York Attorney General’s Office and federal prosecutors in Manhattan are currently investigating Trump Organization employees.
Diane Marie Amann, law professor, University of Georgia
Court documents related to Cohen’s guilty plea today indicate that efforts to secure Russian approval for a Trump Hotel in Moscow extended well into the 2016 election cycle — until the month of a meeting between a group of Russians and Trump campaign associates, among them one of the president’s sons.
Cohen’s plea thus strikes at the core of the special counsel’s May 2017 mandate to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”
This is by no means good news for the president, who earlier this month submitted his own written responses to questions Mueller had put to him.
What might be done to waylay any further evidence of linkages? Options may seem much the same as before. Publicly disparaging the investigation is one. Another is using public statements and other means, including talk of pardons, to discourage associates’ cooperation with the special counsel; still another, demanding revocation of the special counsel’s mandate.
That said, deployment of such options now may carry greater peril, given that the House of Representatives soon will be controlled by members more willing to launch congressional inquiries into the same questions that the special counsel has endeavored to answer in this last year and a half.
Ric Simmons, law professor, Ohio State University
The new criminal convictions for Cohen are significant, but, as always, it is difficult to know exactly how they are significant. Although it is clear that Trump lied about engaging in business dealings in Russia during the campaign, this alone would not be an impeachable offense.
We still don’t know what evidence Mueller has (if any) against the president with regard to collusion with Russia or even knowledge about Russian interference. Legally, Trump always has the option of pardoning Cohen and Manafort and/or ordering his new attorney general to fire Mueller, but either of these options would likely cause more political trouble than simply waiting to see what Mueller will bring in his report. Once the report comes out, he can try to downplay the allegations or discredit the evidence contained in the report.
Ciara Torres-Spelliscy, law professor, Stetson University
Cohen’s prosecution was spun out of the special counsel’s office and is being handled by the US attorneys in the Southern District of New York. In August 2018, Cohen pleaded guilty to violating campaign finance laws and stated to the judge overseeing his case that he had broken those laws at the direction of the now-sitting president (when he was a candidate for office in 2016). As part of his plea, Cohen agreed to cooperate with other prosecutions including the special counsel’s probe.
This new charge comes from special counsel Robert Mueller. Now Cohen has pleaded guilty to lying to Congress — specifically about Trump’s efforts to ink a deal to build a Trump Tower in Moscow. During the 2016 campaign, Trump told American voters that he had no business dealings in Russia. Cohen’s new guilty plea places Trump’s denial of financial links to Russia in doubt, as Cohen says the dealing in Russia went through mid-2016.
There will be a temptation for the president to use the pardon power to avoid criminal liability. Presumably, President Trump’s lawyers have advised him that if he pardons individuals who know about his actions, they can be subpoenaed to testify before Congress or grand juries, and they will not be able to invoke the Fifth Amendment privilege against self-incrimination.
A pardoned Paul Manafort or a pardoned Michael Cohen ironically could be more damaging to the president than if the two of them face accountability for their own criminal liability.
Jens David Ohlin, law professor, Cornell University
Trump has two options: aggressive or modest. The aggressive strategy would be to pardon Manafort and ask acting Attorney General Matthew Whitaker to shut down the Mueller investigation. The modest strategy would be to let things play out slowly, and dare the Democrats to impeach him in the House with the expectation that Senate Republicans will protect him during a removal trial and save his presidency.
The downside of the modest strategy is that Trump might be subject to criminal prosecution after he leaves office if he loses the presidency in 2020. Also, Trump’s personality, and his strategy, favors bold action, even when aides tell him to stand down. So if Trump’s back is against the wall, and he fears that family members or close associates might be indicted, he might decide to pursue the nuclear option and shut down the investigation.
Steven Duke, law professor, Yale University
Trump supporters have demonstrated repeatedly that there are virtually no limits to the crimes and corruption that Donald Trump can get away with. He can obstruct justice with dangled pardons, submit false answers to Mueller’s questions, and commit unimaginably destructive and nefarious assaults on the legal system without any realistic fear of losing his job.
Mueller will probably find numerous impeachable offenses, but the House would be foolish to waste its time with impeachment when the Senate will surely reject the charges. Trump would be wise, however, to calm down lest he harm his chances for a second term. By then, our sanity may have returned.
Jed Shugerman, law professor, Fordham University
The reports suggest that Trump and his lawyers may have been offering a pardon to Manafort in return for some combination of information, silence, lying, and obstruction. These communications are not privileged, and they all could be on the hook for a felony conspiracy to obstruct justice and tamper with witnesses.
But it’s also important to understand this in terms of bribery: a quid pro quo exchange of an official act (a pardon) in return for a thing of value (lying and obstruction are priceless here).
If I were Trump’s lawyers or Manafort’s lawyers, I would be especially worried now about a pardon or assisting with a pardon, because I could face a subpoena without being able to invoke privilege. I could face disbarment, indictment, and potentially prison. That’s what happened to some of Nixon’s lawyers, including two of his attorneys general.
Matthew Whitaker, Manafort’s lawyers, and Trump’s lawyers, including his White House counsel, should be especially careful. They would be wiser to quit, resign, and maybe cooperate if they participated in any criminal conspiracy.
Jessica Levinson, law professor, Loyola Law School
Based on President Trump’s tweets and comments, it seems that at this moment, he thinks his best option is not legal but rather political. President Trump is continuing his campaign of attempting to undermine the Mueller investigation.
He continues to paint Mueller and those working for him as biased political hacks. He has explicitly called the investigation a “witch hunt.” All of this is a concerted effort to taint whatever Mueller does, and to make the public question the integrity of that investigation.
When and if it is the time, President Trump’s legal options would also include refusing to respond to a subpoena and fighting an indictment. And with respect to other people being investigated by Mueller, President Trump has the option of pardoning them. Of course, that pardon would only cover federal crimes, not state crimes.