President Trump's New Legal Nightmare

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I am ashamed that I chose to take part in concealing Mr.

Trump's illicit acts rather than listening to my own conscience.

I am ashamed because I know what Mr.

Trump is.

He is a racist.

He is a con man,

and he is a cheat.

A former Trumpland consigliary alleges the president is a racist, a con man, and a cheat.

And that's not the worst of it.

In the course of his seven hours of public testimony this past Wednesday, Michael Cohen laid a trail of legal breadcrumbs that are likely to be followed by both House Democrats and federal investigators, among others, well after special counsel Robert Mueller hands in his report to the Attorney General.

For so long, we have been focused on the president's relations with Russia.

But did Michael Cohen open the Pandora's box?

Could Trump's legal woes, having nothing to do with Vladimir Putin or the 2016 election, could those be the biggest threat to the Trump presidency?

This is Radio Atlantic.

Joining me to discuss the various possible legal sinkholes that have suddenly opened up this week is Jed Sugerman, professor of law at Fordham University.

Professor Sugarman is a legal historian and analyst.

He followed Wednesday's testimony, and he joins me by phone from New York City.

Professor, thanks for taking the time.

Great.

Thanks for having me.

So Michael Cohen might have actually opened up a Pandora's box for this administration, legally speaking.

And I'd love to talk with you kind of about what you think is most perilous for this president, starting with

the hush money payments to Stormy Daniels, the checks that everyone was shown on broadcast and in the courtroom that show the signature of the President of the United States on a $35,000 payment to Michael Cohen.

Cohen says he has 11 checks in total that comprise the total reimbursement payments for the hush money he gave to Stormy Daniels.

It's the first evidence, hard evidence, paper evidence we've had of potential criminal wrongdoing.

What did you make of it and where do you think these checks go from here?

I'm glad you're starting with that because I think as a legal matter, that's probably the clearest,

that has the clearest legal implications in terms of clearing now probable cause.

I mean, when you think about when someone is getting indicted, the rule is that you have to have probable cause for a grand jury.

And I think we've crossed that threshold so clearly that we need to have a conversation about indicting a sitting president because at this point it's really flaunting the rule of law to have such such a clear demonstration of a felony on the floor of Congress with the visual evidence of the president's signature while he's in.

I mean, think about how dramatic it is.

He is sitting, he is actually the president committing a felony to pay off how he got into that office in the first place.

And if we have rules about campaign finance, it's kind of perverse to say that, well, as long as someone wins and becomes president, then they are off the hook.

As long as they won,

they have impunity for the felony tactics they used to get into the Oval Office.

So there is one big legal hurdle when it comes to campaign finance felonies that I think we have to talk about.

And it's that you have to be able to prove that the defendant intended,

it was a knowing violation of campaign finance rules.

And the other problem with

President Trump is the perverse advantage he has of basically so many people assuming he knows nothing.

He has the

sort of plausible deniability and all of of that.

Yeah, I mean, so on the one hand, many people say, look,

because we joke about how stupid this president is, doesn't that actually have the perverse effect of giving him criminal kind of plausible deniability and a way to get off the hook?

Because

how could he knowingly violate the campaign finance laws when we don't think that he actually understands much about

politics or law in the first place?

And I've been focusing on this there while this was happening before the Cohen's testimony, while there were first allegations, allegations, people did a great job digging back into the video archives, and they found during the John Edwards prosecution, so what happened was a very similar story happened with John Edwards, where

a supporter paid off and

hunched money to Riel Hunter.

That's right, and it turns out that in the middle of that prosecution, Donald Trump is interviewed about that particular case.

And if I'm a prosecutor,

that would be my chief piece of evidence to say that not only should we expect that people running for president should somehow have some basic understanding of campaign finance law, here is Donald Trump himself just a few years ago commenting on precisely this legal problem.

And he actually thinks that, you know, he's basically commenting how

this is the law.

So I think that actually becomes a pretty solid piece of evidence that not only do you see the check with Donald Trump's signature on it that establishes that the payment happened, but also that Donald Trump had the requisite knowledge and intent for this to be a campaign finance felony.

I just want to I want to focus on the irony for one moment that the John Edwards scandal, which broke in which paper?

The National Inquirer,

which is part of the Trump world sort of legal entanglements.

But the fact that that may be used as a piece of evidence to show that, you know what, Donald Trump full well knew what campaign finance violations were.

I would ask you, though, from a legal perspective, the fact that these payments were

sort of disguised as retainer payments.

We have presumably 11 checks in the amount of $35,000, or at least the bulk of them are the same amount, but they're issued by different authorities.

Some come from the Revocable Trust.

Some come from other parts of the Trump World's organization.

Some are signed by Don Jr., apparently.

Some are signed by, co-signed by Alan Weiselberg, some are signed by the president himself.

Does that legally,

do prosecutors have a case to be made that this shows there was an attempt at obfuscation, at covering up what was actually happening here, which were campaign finance violations?

That's exactly the right question.

Prosecutors call this evidence of consciousness of guilt.

If Donald Trump didn't think that there was any problem with these kinds of payments, why would they have gone to such efforts to hide, to split them up into lower payments over a course of time through different sources, hiding them, disguising them as retainer payments.

All of this would support consciousness of guilt and the understanding the knowledge of the campaign finance laws that they were trying to dodge.

Now, a president, a candidate is allowed to donate money to their own campaign, but this is why we have disclosure rules.

They have to actually record how much their money they are spending to keep track of it and not be able to hide it.

And the fact that they were using these steps to hide it shows that

the understanding, the knowledge, and the intent intent

to break the law.

The other person that may help bolster the feds case or complicate it is Alan Weiselberg.

He is the chief financial officer of the Trump organization.

He had a limited immunity deal with federal prosecutors, but is not a cooperative witness.

But if there was one name that came up over and over and over again, especially in the context of these illicit payments, it's Alan Weiselberg.

I think the broad expectation, Professor, is that Weiselberg is going to be subpoenaed and is going to end up somehow on the hill.

What's your interest in his activities?

Weisselberg is perhaps one of the most important players now for the next, you know, for the foreseeable future.

Now, the Democrats actually did a pretty good job.

There are many ways that

many Democrats

did not use their five minutes well.

But Alexandria Ocasio-Cortez

used her time very strategically to get Michael Cohen to invoke Alan Weiselberg's name again and again.

You mentioned it before about

the campaign finance hush payments

to Michael Cohen, and that's one respect in which Alan Weiselberg is now on the hook for potential criminal violations in the campaign finance context.

But I think what really was dramatic in terms of the testimony was how many times Alan Weiselberg's name came up in other kinds of potential felonies.

So the line of questioning from Ocasio-Cortez focused on a series of tax frauds and insurance fraud.

Those are really dramatic new steps that will lead to Weiselberg being subpoenaed and being brought to Congress to testify.

The question about immunity is, will Weisselberg be given immunity to testify?

And if he's not, I would imagine if he's smart that he would be invoking that, he would be invoking the Fifth Amendment.

Are you surprised that he hasn't been offered immunity already?

Well, so he was, so way back when, so last summer in August, the report was

it was limited immunity, which probably meant, and we're all piecing things together here, it means that he has not become a cooperating witness, but he was brought in to testify about some limited set of questions for one day with the Southern District of New York.

And so, what that probably means is he was given immunity from that, from any of those statements being used against him, but that does nothing to prevent a prosecutor from using other documents or other people's testimony to indict him or to

use the threat of prosecution to get him to cooperate.

And we should note that the team running the sort of Weiselberg operation here is the Southern District of New York,

which is not bound by the same limitations as the special counsel's probe.

And it sort of feels like not quite as under the thumb of Washington as Robert Mueller and investigations that take place in the nation's capital.

Right, and there's another strain of controversy coming up about their new reports that Donald Trump has behind the scenes trying to put pressure on the Southern District of New York.

The current U.S.

attorney who runs the Southern District of New York

has recused himself of the Trump investigations, and that leaves other

prosecutors running the office.

And this raises new questions, new evidence of perhaps obstruction of justice with Trump interfering with the Southern District of New York.

The Southern District of New York has a history of being more independent from politics,

and it also has a little bit more more latitude than Mueller does because

it's harder for the Attorney General to exercise some of the control because

they run a specific independent office in New York.

And they also have much less limitation.

As you noted,

their jurisdiction can extend further.

As long as it's in the New York area, they can delve into other aspects like the inauguration.

And that's another, there's so many different fronts that are opening up.

The podcast isn't long enough.

Exactly.

So there's so many fronts, but you did mention two of them before, bank fraud and insurance fraud.

Let's talk a little bit about the context of all of that.

Cohen alleges that Trump inflated his net worth when it was necessary to secure bank loans, and he deflated it when it was convenient, like his tax filings.

And Cohen presented as evidence financial documents that listed Trump's personal assets and liabilities in the years 2011, 2012, and 2013.

So how do you see Trump's legal exposure in these instances?

Well, it's dramatic exposure.

Let's focus on Alan Weiselberg's liability there.

So if Weiselberg was participating in, first of all, the campaign finance felonies, but then also now as you're focusing on tax fraud, insurance fraud, and bank fraud, Weisselberg is on the hook for all those things.

So he could also explain, like, he has a lot of reason to not just get immunity, but actually become a cooperating witness with a plea deal

because it seems like he's implicated in lots of different ways.

He is the person who many of us have been speculating for the longest period of time, has the most evident, most he knows where the bodies are buried.

And as long as we're talking about Russia, it may literally be where bodies are buried because

the implications of what's happening with the collusion is with Manafort, et cetera.

There is this specter of

what does Russia have and what kinds kinds of

the threats from what money laundering and the compromat, as it is known in

intelligence circles.

Compromat and the actual risk to people's lives, right?

So Weiselberg probably knows more, if there is money laundering, Weisselberg knows who and how that money laundering happened between Russia, Deutsche Bank, and the Trump organization.

Trevor Burrus, Jr.: But even independent of all of that, which is serious, and again, like we will all be eagerly awaiting details from Weiselberg-Mueller et al.

But just on the bank tax and insurance fraud, Weiselberg is in a perilous position, it sounds like.

That's exactly right.

And so the point is that he has more motivation to cooperate.

Then the question might be, well,

maybe Weisselberg will be looking for a pardon that could get him off the hook.

And that's where this legal exposure is so important.

Unlike campaign finance felonies, which are only federal or would only be able to be prosecuted on a federal level, they could also be pardoned.

A president cannot issue pardons that get someone off the hook for state crimes.

And what was laid out in the congressional testimony by Michael Cohen were a series of crimes that are both federal and state.

So tax fraud and bank fraud implicate New York state prosecutors.

Insurance fraud also gives New York state prosecutors grounds to bring charges against Weisselberg.

And that means that he cannot rely on pardons.

And many of the other Trump organization officials will also be facing state criminal liability.

Okay.

And we're not done yet.

There is more.

You know, one of the sort of

more,

you know, emotionally visceral pieces of testimony that Cohen gave was the ways in which he was sort of forced to clean up after Trump and the way he had compromised himself and to some degree his family.

And you could get a sense of almost the regret that he had about what he'd done and the bad things that he'd done.

One of these lines of sort of this mea culpel led to some further allegations that Cohen had been forced to basically perjure himself at Trump's behest.

Mr.

Trump did not directly tell me to lie to Congress.

That's not how he operates.

In conversations we had during the campaign, At the same time I was actively negotiating in Russia for him.

He would look me in the eye and tell me there's no Russian business and then go on to lie to the American people by saying the same thing.

In his way, he was telling me to lie.

Cohen says that Trump directed him to lie about those Stormy Daniels payments, but specifically as it concerns perjury about the Trump Hotel project in Moscow.

Now, Cohen says that Trump didn't say, you must lie about this, but in his sort of code, Ma Ba Speak, made sure that Cohen knew what his talking points should be.

And that furthermore, Trump lawyers, including Jay Seculo and Jared Kusher's lawyer, Abby Lowell, reviewed Cohen's comments to Congress regarding the timing of the Trump Moscow project.

And in so saying, Cohen suggests that they

were basically suborning perjury here.

How did you read that

those allegations, Professor?

Right.

I mean, I think many of us were really focused on this question because this was the big BuzzFeed controversy, right?

Where the Mueller investigators have always been so quiet and behind the scenes, but yet they came out

to dispute the BuzzFeed report from a month ago, that BuzzFeed claimed that they had evidence that

Trump suborned perjury with Michael Cohen.

And so I was really concerned about this.

I was focused on this allegation coming into Cohen's testimony to see if he could substantiate it.

And I actually came

the night before the testimony

when Cohen published his written remarks.

I was more concerned that

these allegations were unfounded because his written testimony was so vague.

And it struck me as odd and actually probably undermining this claim if he had been so vague in the written testimony.

You mean suborning perjury has to be very clear?

Well,

the timing, okay, so I had two concerns.

One was

it's one thing for Trump to tell Michael Cohen explicitly to lie during a campaign, and it's quite another long before congressional testimony is on the horizon.

And quite another allegation, which BuzzFeed was reporting, that after the election and closer to Michael Cohen's testimony in May of 2017, you know, a few months after the election, when, you know,

on the eve or around the time of the congressional testimony,

that would be the kind of claim that you'd need to to have suborning perjury, not just sort of people telling each other a lie way, way before testimony.

That's not enough.

And the other question that was still vague was, well, how direct or how clear was it?

Let's just be clear.

Suborning perjury does not require a person to sort of say, hey, I want you to go perjure yourself, and I'm going to write a letter that says explicitly, go perjure yourself.

That's unrealistic.

That would be a dead letter because people would then know how to avoid being liable for coordinating lies.

It has to be true that someone can be held liable for suborning perjury by sending clear signals for coordinating false testimony.

Do you think we have evidence of those clear signals at this point?

I think we do now because some Democrats did a good job of getting Michael Cohen to go to be more clear and specific.

And so Michael Cohen's answers,

I think, laid out that more specific charge.

First of all, he described meetings in May of 2017,

right before the testimony, where Donald Trump sent implicit, but nevertheless Cohen explained how they were clear signals for

coordinating a story, saying things like, there was no deal, there was no deal, there's no collusion.

These were signals, implicit, but still clear enough signals for suborning perjury to clean up the timing of the Moscow, the Trump Tower Moscow kind of collusion.

And so

that was with Trump.

That's not just Trump's lawyers, that's Trump himself participating there.

And the second thing that in terms of both the timing and the clarity, there's now

Jackie Speer, one of the congresswomen on the committee, said, you know, can you provide us with the first draft of your written testimony so we can compare how Trump's lawyers got you to change your written testimony?

On page five of your statement, you say, and I quote, you need to know that Mr.

Trump's personal lawyers reviewed and edited my statement to Congress about the timing of the Moscow Tower negotiations.

Who were those attorneys?

Chase Sek from the White House?

Yes.

Chase Sekolo, I believe Abby Lowell as well.

And do you have a copy of your original statement that you can provide to the committee?

I can try to get that for you.

All right, if you would do, though.

And so now this does two things.

One is that you can now have a very specific set of concrete changes that were done by Trump's lawyers, and it also puts Trump's lawyers in the crosshairs legally.

So you think things are complicated.

We should note that Jay Seculo, in a statement yesterday, denied Cohen's allegations.

You think that they are in questionable territory here, Abby Lowell and Jay Seculo.

Abby Lowell and Jay Seculo will be called to testify

under oath before Congress about this question.

And if Michael Cohen is able to produce

his own draft and the changes they made, they are going to face some questions with criminal, with some criminal potential consequences about what they knew and when they knew it.

Were they knowingly participating in a conspiracy to suborn false statements and perjury?

And attorney client privilege does not apply because there's something called

the fraud crime exception.

Lawyers do not get to invoke attorney client privilege if they were involved with a criminal conspiracy.

conspiracy.

Now they may claim we didn't know about the Trump Tower Moscow

plans, but they would still have to answer questions about whether Donald Trump knew about and participated in these revisions.

That would raise significant questions about Donald Trump knowingly participating in this conspiracy to suborn perjury and false statement.

Dramatic.

We are going to take a short break, but when we come back, we will talk more about the legal peril that Trump and his advisors in the White House may find themselves in.

Stay with us.

Charlie Sheen is an icon of decadence.

I lit the fuse and my life turns into everything it wasn't supposed to be.

He's going the distance.

He was the highest paid TV star of all time.

When it started to change, it was quick.

He kept saying, No, no, no, I'm in the hospital now, but next week I'll be ready for the show.

Now, Charlie's sober.

He's going to tell you the truth.

How do I present this with any class?

I think we're past that, Charlie.

We're past that, yeah.

Somebody call action.

Yeah.

AKA Charlie Sheen, only on Netflix, September 10th.

We are back with Professor Jed Sugerman, professor of law at Fordham University, a legal historian and analyst, answer of all of my legal questions pertaining to Michael Cohen.

Let's talk a little bit about

the Trump satellite organizations that seem to be in some legal peril as a result of Michael Cohen.

The Trump charities.

Now, those are already under investigation, but Michael Cohen brings to light this particular instance when a portrait of Trump was purchased by a fake bidder at an auction for $60,000.

Cohen says Trump directed the Trump Foundation, which is supposed to be a charitable organization, to repay the fake bidder, even though Trump kept the art for himself.

Legal experts are saying that could be a civil violation of state laws, the ones that govern charitable foundations.

The Trump Foundation has already been under investigation for its operations, and I think that there was a similar purchase of another portrait.

How do you read the legal landscape here?

This is something I've been focused on from the beginning of 2017, which is both all of the fraud that is alleged about the Trump Foundation and also their interconnectedness of the Trump Foundation frauds and the Trump organization business frauds.

They're intermeshed.

So

here's what we already know legally.

The New New York Attorney General,

the one who was just in office, Barbara Underwood, already started a legal step in the state of New York that could lead to the dissolution, to dissolving the Trump Foundation because of all of the tax fraud and frauds of the nonprofit rules.

That process is starting now with the Trump Foundation, but ultimately, given all of the evidence we're seeing now,

the next legal step should be to dissolve the Trump Foundation under New York nonprofit law.

Here's the kicker.

Those same laws that apply to nonprofits and frauds also apply to for-profit corporations.

The New York Attorney General's next step should be to bring the same

process to the Trump organization as a corporation, because under New York state law, the Attorney General can investigate a corporation for fraud, and if there is enough of a pattern of fraud, the New York Attorney General should dissolve, should bring an action to dissolve, basically

eliminate the corporate organization.

The Trump organization is now implicated in so many different kinds of frauds that we've now crossed that threshold.

Wow.

Before we get to the sort of biggest, big picture question I have for you, I want to single out this exchange between Congresswoman Jackie Speer of California, who we talked about earlier, and Michael Cohen, and they're talking about threats.

How many times did Mr.

Trump ask you to threaten an individual or entity on his behalf?

Quite a few times.

50 times?

More.

100 times?

More.

200 times.

More.

500 times.

Probably.

Over the 10 years.

Okay.

You heard that exchange.

Professor,

something seems not right there that, I mean, I know blackmail and extortion are hard to to prove, but is there some kind of legal peril that, or legal implication to repeatedly threatening people 500 times?

Well, we just, the numbers are dramatic, but we don't have enough detail about what those threats entailed.

We certainly know that Michael Cohen used a lot of colorful language when he was making threats.

But

until we know a lot more detail, it's not clear what the legal implications might be.

Nevertheless, I mean, we are now seeing in various ways

extortion.

We just saw with the National Enquirer and Jeff Bezos a pattern of what is clearly extortion.

And so if Michael, Michael, there wasn't enough time to go into detail

in Congress, but surely New York State and federal prosecutors are going to follow up and ask for those details.

And even if Michael Cohen might not identify them as extortion himself, prosecutors can ask follow-up questions and see what might be.

All right.

So that brings me to my last sort of big question, which is, you know, the bombshell that Cohen dropped at some point, I can't remember, it was towards the end of the hearing.

He said he is aware of other misconduct or illegal acts by Trump that are currently being investigated by the U.S.

Attorney for the Southern District.

What do you expect those are?

I mean, you just talked about the Trump organization.

I would assume some of that focus is on the Trump organization and its business dealings.

That's my assumption, too.

The big picture here is that

Michael Cohen's testimony is just the tip of the iceberg because it was still narrowly - I mean, up until the day of the testimony, it wasn't even clear he could say anything about Russia.

He touched on that,

but

what is clear?

And even without Russia, it seems like there's plenty to look at.

There's a ton to look at, and I would still,

we saw how Cohen steered away from big questions when,

because the Southern District and Mueller may be looking at those questions themselves.

I would say that the other key thing that we haven't seen yet beyond what Michael Cohen says out of his own mouth is the mountain of documents and digital evidence that they got out of Michael Cohen's own office.

We will eventually see more of that.

Many people who are associates of Michael Cohen say that there's a lot more about these finance finance questions that may still be to come.

Trevor Burrus, Jr.: I just want to close this all out by noting an interesting factoid that ties together all of our worlds quite neatly, which is that

in his testimony on Wednesday, Michael Cohen

said that

he provided the committee with a letter he sent on behalf of then-candidate Trump to Fordham University, which is where you teach.

This letter was sent in 2015, threatening Fordham from releasing Donald Trump's SAT scores or college records.

Is this a matter of discussion of Fordham at all?

No.

In fact,

I think it's actually one of the things that was really important.

I'm not just saying this

because I'm affiliated with any of these universities.

I think that there are some, just because Donald Trump has done a lot of bad things, we still have to take a step back and recognize that there are some places where privacy matters.

I think that that, let's draw a line between Donald Trump's tax returns, which clearly should be a matter of public record, and in state-and are likely to be at this point, don't you think?

Yeah.

I mean, certainly Congress laid out the legal basis for subpoenaing people's tax records, especially someone running for office.

But I think it's really important to take a step back and

appreciate people's ⁇ there's still, even when some people abuse privacy rights, it's still important to recognize that the general principle is worth protecting,

especially in some of these matters about people's personal records.

I think your fellow Fordham professors and certainly Donald Trump would be happy to hear you reach that conclusion about

that piece of information we were gifted, yes.

And it doesn't, and just be, and

that's also important to understand the background about threats, is that some threats are actually important.

It is important for lawyers to threaten legal action to protect certain kinds of rights and privileges.

And so

I think it's helpful to distinguish between good threats and bad threats.

Well, I think we're going to get a quick tutorial on that in the coming months.

Professor Jud Sugarman at Fordham, a place that does not give up academic records.

Thank you very much.

Thank you for joining us on the podcast.

Absolutely.

Thank you so much for having me.

That'll do it for this week of Radio Atlantic.

Thanks to Kevin Townsend for producing and editing this episode, to our podcast fellow, Patricia Jacob, and to Catherine Wells, the executive producer for Atlantic Podcasts.

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