This was the worst week yet for Trump regarding his legal troubles. The question is what happens now.
The Guilty Verdicts, Plea Deals and Immunity Grants
On Tuesday Paul Manafort, a Trump campaign manager, was found guilty of eight counts of tax fraud and defrauding a bank. A lone juror holdout prevented him from being convicted on all 18 charges.
Also on Tuesday, Michael Cohen, Trump’s personal attorney for many years, pled guilty in another case to violations of federal election laws, which he stated in court were directed by Trump. That was based on the payments to keep Trump mistresses -- porn star Stormy Daniels and Playmate Karen McDougal -- quiet during the 2016 campaign. Although there is no formal plea agreement with the prosecutor, Cohen’s attorney said that Cohen has information he is happy to share that “will have a great deal of interest” to Special Counsel Robert Mueller. That could net Cohen a reduced sentence.
On Thursday we learned that David Pecker of the National Enquirer, which was involved in paying these women for their stories and then killing those pieces, was granted immunity in return for testimony in the Cohen case.
On Friday, we learned that the CFO of the Trump organization, Allen Weisselberg, was also granted immunity in return for testimony in the Cohen matter. Weisselberg started out working for Trump’s father, and is intimately aware of all Trump financial activities over many years. That may include any money-laundering Trump has performed for Russian and other oligarchs.
Possible Pardons
Trump complained that “flipping” as Cohen has done should be illegal, although of course it is a major tools that prosecutors have used for many years; without it, many mob bosses would never be convicted. Given Trump’s carping, a pardon of Cohen now seems unlikely -- and Cohen’s attorney said that Cohen would not be “dirtied” by accepting a pardon from Trump.
The Manafort situation is different. Even before the Manafort verdict, Trump consulted his attorneys about pardoning Manafort.
If Trump pardoned Manafort, Manafort could then be compelled to testify in other trials because he would not be able to claim Fifth Amendment protection from self-incrimination. Of course, Manafort could refuse to cooperate and then Trump could presumably pardon him from contempt of court as well.
Manafort faces a second trial in mid-September, this time for failing to register as a foreign agent, money laundering and for witness tampering, among other things. This trial is more likely to reveal information about Trump money laundering or Russia’s involvement in the 2016 elections, though that is not guaranteed. As the pardon power can be used prior to a conviction, Trump would love to pardon Manafort for everything prior to his second trial so the evidence does not become public.
Even better, from Trump’s point of view, would be firing Special Counsel Robert Mueller and ending his investigation.
Firing Mueller
Republicans have refused to pass legislation preventing Mueller from being fired.
On Friday, Trump yet again criticized Attorney General Jeff Sessions. Sessions recused himself from overseeing the Mueller investigation because Sessions had met with the Russian Ambassador twice during the Trump election campaign. Rod Rosenstein, the second in command, has said the Mueller investigation should proceed. Trump could fire Sessions (or Rosenstein) and find a replacement who is willing to fire Mueller.
The Republicans, facing tough midterm elections in a bit more than two months, do not want Trump to either pardon Manafort or fire Mueller prior to the elections. They believe that either would increase the chance of Democratic success at the polls.
On Thursday, Republican Senators Chuck Grassley (R-IA) and Lindsay Graham (R-SC) said that they would approve a replacement for Sessions after the elections. In other words, true American patriots that they are, they are willing to end the Mueller investigation as long as it is done in a way that does not harm Republican election chances.
While it is early to predict the results of the elections, currently the odds of the Democrats winning the House of Representatives are 73%, per FiveThirtyEight using its “classic” approach. (The Democrats’ chances of winning the Senate are at best 50-50, although if this turns out to be a huge wave election that could happen.)
The Cases Will Continue Even if Mueller Is Fired
Yet, even if Mueller is fired, Trump’s legal difficulties will not end.
Ironically, the fact that a single holdout juror prevented Manafort being convicted of 10 other counts allows state prosecution. The judge did not find Manafort not guilty of those charges but declared a mistrial on them, so they may be tried again. Failure to pay taxes is a state crime as well as a federal one. While the prohibition on double jeopardy may prevent states from prosecuting Manafort on the eight convictions the Mueller team obtained, the states are free to pursue the remaining 10 counts. And while Trump can pardon federal convictions, he has no power to pardon state ones. State convictions could persuade Manafort to cooperate.
The Cohen matter, on the other hand, is not being prosecuted by the Mueller team, as Mueller transferred it to another group of federal prosecutors. Even if Trump manages to fire Mueller, the Cohen prosecution will continue.
Most legal analysts believe a President cannot be criminally indicted while in office (although afterwards prosecution is allowed), at least in federal court, although this has not been tested. The belief is that the only remedy is impeachment. (Civil prosecutions are permitted, as shown by the Lewinsky case involving President Bill Clinton; state criminal prosecutions may also be banned while a President is in office, although this is less certain.)
In any case, the Department of Justice has had a policy since 2000 of not indicting a sitting President. It is extremely doubtful that Mueller, who is an avid by-the-book man, would indict Trump.
Even if he is fired, Mueller may have sealed indictments already on file with the courts. As careful as he is, he likely already has arranged for other federal prosecutors to assume these cases if he is removed.
Mueller also is required to present a report at the conclusion of his investigation to Rod Rosenstein, who could release it. Alternatively, Mueller might be able to release a public report through the grand jury. Mueller may already have prepared a report and be constantly updating it. If Sessions or Rosenstein are fired, Mueller could possibly release that report before he is terminated.
In short, even if Trump exercises his pardon power and engineer’s Mueller’s firing, Trump’s legal problems are not going to end.