Individual 1
Michael Cohen, former lawyer to Donald Trump, pleaded guilty to eight federal felony counts in the Southern District of New York. Six of those counts dealt with Cohen’s own actions dealing with business and taxes. Two of the counts were for breaking Federal Campaign Finance laws; he made illegal contributions and hid them for the purpose of evading the law. Cohen also pled guilty to a felony count of lying to Congress regarding Trump Organization contacts with the Russian government during the 2016 campaign.
In his guilty pleas regarding the campaign finance law violations, Cohen stated that he made those payments for the Trump Campaign, and in fact at the direction and with coordination of “individual 1.” Individual 1 was the candidate, now President, Donald J. Trump.
The legal definition of a conspiracy is:
An agreement between two or more people to commit an illegal act, along with an intent to achieve the agreement’s goal. Most U.S. jurisdictions also require an overt act toward furthering the agreement. (Legal Information Institute, Cornell University)
Cohen pled guilty to two counts of Campaign Finance Law violations, at the direction and coordination of “individual 1.” By definition, Cohen was in a criminal conspiracy with “individual 1,” and if Cohen was charged with the crime, so too should be “individual 1.” As he was not charged, he becomes an unindicted co-conspirator.
The term “unindicted co-conspirator” is one with loaded meaning. On March 1, 1974, when Richard Nixon was in the depths of the Watergate crisis, seven members of his staff, including the Attorney General, the White House Chief of Staff, the Assistant for Domestic Affairs, and a Special Counsel to the White House; were indicted by the Watergate Special Prosecutor Leon Jaworski. The charges were obstructing justice, making false statements, lying to federal investigators and prosecutors, and lying to Congress.
As a separate part of the court filing, a sealed report was delivered to the judge, outlining the actions of an eighth unindicted co-conspirator; Richard Nixon, the President of the United States. That filing was ultimately transmitted to the Judiciary Committee of the House of Representatives, and became the basis for the impeachment of the President.
Jaworski determined that he could not indict a serving President of the United States, but that is by no means “black letter law.” The US Constitution does make it clear that members of the House and Senate:
“…shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same…” US Constitution, Article 1, §6, Paragraph 1
It however, it grants no such immunity to the President of the United States. In Article 1, §3 the powers to impeach and remove from office are granted to Congress, and in that section it states that once removed, the subject of removal can be indicted, tried and punished by the courts. Article 2 states that the President can be impeached and removed for committing “…treason, bribery, or other high crimes and misdemeanors (Article 2, §4.)
The Department of Justice and many legal scholars take this Constitutional wording to mean that the President cannot be indicted until AFTER impeachment and removal from office. Jaworski in 1974, and Robert Mueller today, are bound by this Justice Department ruling. However, that has never been directly adjudicated in court; so it still remains an open question.
The authors of the Constitution were weighing two conflicting concerns as they established the powers of the branches of government. One of the main reasons for the Constitutional Convention was the weakness of the then-existing government, the Articles of Confederation Congress. The Constitutional authors created a more powerful executive branch, and then tried to balance those executive powers with checks and restrictions from the other branches.
The Legislative branch was given the ultimate power to remove the executive for crimes: impeachment and conviction. The Judicial branch was given a very limited role in that process, simply presiding over the conviction phase. The judiciary would get their chance at a criminal President, but only after removal from office.
And yet, the Constitution saw all citizens as equal in the eyes of the law, and carefully controlled those parts of the Presidency that resembled the monarchy they so recently revolted against. The powers of the President were limited. In the Federalist Papers, Alexander Hamilton made the argument that the President could be controlled.
The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. (Federalist Papers, #69)
So while there’s no “black letter law” answer as to whether “individual 1” can be indicted and tried for Federal crimes, it seems that the intent of the Constitution was for the Congress to exercise their power to remove him from office first, then subject him to trial. And since the impeachment and removal process is political rather than judicial, the strict legal rules of court procedures need not apply. How the Congress proceeds with the “trial” of impeachment is up to them. It takes a majority of the House of Representatives to bring the charges (impeach) and two-thirds (67) of the Senate to convict (remove.)
In our current era of political division, the difference between “red” or “blue” power seems to rest on a knife-edge of votes (see North Carolina’s 9th, where 900 or so votes divide the candidates, and a scandal may change the outcome.) A two-thirds majority of the Senate for anything seems wildly beyond expectation. Senators would need to be sure that they are doing the will of the vast majority of the people, and it would take an ironclad case to convince the American people that the President should be removed. The Nixon tapes were enough to tilt the vote against him (though twenty some percent still supported him) and forced Nixon to resign in the face of the inevitable.
It took more than being an “unindicted co-conspirator” then, and it will again today. The nation will wait to see the “overt act” that shows a high crime and misdemeanor; one that most (not just our Resistance minority) will view as beyond reason. Then, and only then, will “individual 1” face justice.
