One aspect of the Manhattan district attorney’s indictment of former President Trump that has drawn considerable attention is why a local prosecutor brought charges linked to possible violations of federal campaign laws — and why the Justice Department has not.
It is known Mr. Trump was under scrutiny by federal prosecutors in the Southern District of New York some years ago as part of an investigation that also looked at his longtime fixer, Michael D. Cohen. Mr. Cohen eventually went to prison, but Mr. Trump was not charged at the time, or after he left office.
The prosecutors and the Justice Department have never said publicly why Mr. Trump was not charged, but some of the reasons appear to concern how the prosecutors viewed Mr. Cohen, who is expected to be involved in the case brought by the district attorney, Alvin L. Bragg.
In 2018, the Southern District prosecutors brought charges against Mr. Cohen for paying $130,000 in hush money to the porn star Stormy Daniels during the 2016 presidential campaign. During that investigation, the federal prosecutors concluded that Mr. Trump had directed Mr. Cohen to pay off Ms. Daniels to keep her quiet about a sexual liaison she said she had with Mr. Trump. He has denied her assertion.
The Southern District prosecutors accused Mr. Cohen of violating federal campaign finance laws, arguing that the payments to ensure the silence of Ms. Daniels, which were later reimbursed by Mr. Trump, amounted to an illegal donation to the Trump campaign.
The Indictment of Donald Trump in New York
But the Southern District declined, at the time, to file charges against Mr. Trump.
The federal prosecutors, and later Robert S. Mueller III, the special counsel, determined that prosecuting him would have violated a Nixon-era directive from the Justice Department’s Office of Legal Counsel that was interpreted as preventing the indictment of a sitting president.
That protection disappeared the moment Mr. Trump left office.
Mr. Trump’s defenders have seized on the fact that no federal charges have been brought against the former president in connection with the hush money payment to portray the actions of Mr. Bragg as motivated by partisanship.
The federal prosecutors in Manhattan appear to have briefly considered reviving the inquiry into Mr. Trump in January 2021, just before President Biden was sworn in, but decided against doing so, according to the recent book “Untouchable,” by Elie Honig, a former Southern District prosecutor. (The decision was made in New York, and senior department staff members in Washington played no role in the decision, current and former officials said.)
Nicholas Biase, a spokesman for the Southern District, declined to comment.
The decision not to indict appeared to be rooted in lingering concerns about Mr. Cohen’s credibility and cooperation as a government witness.
The Southern District prosecutors had informed Mr. Cohen that he had to provide a comprehensive accounting of his conduct as a condition of a cooperation deal, but he declined to be debriefed on other uncharged criminal conduct, if any, in his past, the prosecutors said in a 2018 court filing.
That ran afoul of a longstanding policy followed by the Southern District regarding cooperation agreements, according to current and former Justice Department officials: A potential cooperating witness must divulge the entire range of their criminal conduct over their lifetime to get a deal.
It is a rule “that not every U.S. attorney’s office uses” but has become an essential requirement to bringing cases in the Southern District, one of the country’s busiest and most scrutinized legal venues, said Joyce Vance, a former federal prosecutor and University of Alabama law professor, in a post on Substack.
Such an accounting must “encompass their entire criminal history, as well as any and all information they possess about crimes committed by both themselves and others,” the Southern District prosecutors wrote in the 2018 court filing that seemed to lament Mr. Cohen’s recalcitrance. The prosecutors said they had found Mr. Cohen to be “forthright and credible.”
“Had Cohen actually cooperated, it could have been fruitful,” the prosecutors wrote. But because he did not, the prosecutors said, the “inability to fully vet his criminal history and reliability impact his utility as a witness.”
By July 2019, in another court filing, Southern District prosecutors signaled they were unlikely to file additional charges in the hush-money investigation, reporting they had “effectively concluded” their inquiry into efforts to buy the silence of Ms. Daniels and another woman who said she had an affair with Mr. Trump.
They did not include any explanation. But in private, federal prosecutors cited concerns that Mr. Trump’s lack of basic knowledge of campaign finance laws would make it hard to prove intent, according to three people familiar with the situation.
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