The Daily - ‘The Most Significant Campaign Contributions’ in U.S. History

Episode Date: December 17, 2018

It was never clear what motivated Rod J. Rosenstein, the deputy attorney general, to hand the investigation of Michael D. Cohen, President Trump’s former lawyer, over to career prosecutors in New York rather than to the special counsel. With that investigation now implicating the president in serious campaign finance violations, we look at how fateful the decision may be. Guests: Neal Katyal, a lawyer who drafted the rules that govern special counsel investigations, and Michael S. Schmidt, who has been covering the special counsel investigation for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. It was never clear what motivated Rod Rosenstein to hand the investigation of Michael Cohen over to career prosecutors in New York rather than the special counsel. Now, with that investigation implicating the president in serious campaign finance violations,

my colleague Mike Schmidt spoke to Neil Katyal, the man behind the special counsel rules, about how fateful that decision by Rosenstein may turn out to be. It's Monday, December 17th. So Neil, 20 years ago, you were the guy at the Justice Department who had to come up with a way that we as a country were going to investigate the most powerful people in the government and have that investigation protected from politics. We were coming out of the Starr investigation into Bill Clinton. Watergate and its legacy still cast a huge shadow on executive power and how we looked at our president. And you built this structure for a special counsel investigation,

a special way that we could look at this type of wrongdoing. What was that structure you created? Right. So the special counsel would have day-to-day independence. If they were to do something that contravened established Department of Justice policy, they would go to the attorney general or the acting attorney general and seek permission for departure. And this is very important because we said in there, if the attorney general says no to the special counsel, then that triggered a reporting requirement to Congress and not just to the majority party in Congress, but to the minority party as well. And so the idea is to shed sunlight into the process and avoid a government cover-up.

Because we were worried about a president who would lean on an attorney general and say, hey, you know, look the other way. You know, that was all stuff we anticipated, and that's why the regulations look the way they do. So you're trying to build, as you said, sunlight into this so the public will have a belief that this was an investigation conducted without politics. This was free of politics. And by doing that, it's this trigger that if the investigators wanted to do something and their superiors, the attorney general said no, then Congress would be told about it. That is correct.

What we wanted to do was just figure out a mechanism to let the career folks do the job that they know how to do without any interference by the attorney general or some other political creature. And after you built it, how did it work? So the special counsel regulations have only been triggered a couple of times. And I think the experience has been pretty good thus far. They have worked in largely the ways we've anticipated.

But I'm not sure we ever anticipated a presidency like Donald Trump. What do you mean by that? I think the best example of this, as I said, was that we anticipated that there would be an acting attorney general like Rod Rosenstein supervising the investigation. lackey, fake Attorney General like Whitaker, who's, you know, not only not qualified for the position, but bypassing the Senate altogether and say, oh, you're now the acting Attorney General and can supervise this investigation. And by the way, a guy who had been on cable news time and

again, attacking the Mueller investigation. So, you know, we had a team of 18 of some of the smartest people at the Justice Department on this working group back in 1999. But that ain't something we thought about. So that was how you were thinking about protecting the special counsel investigations. But right now, in this moment, we're less focused on the special counsel's investigation and more focused on these prosecutors in New York and the fact that the president's former lawyer and fixer, Michael Cohen,

has implicated the president in a crime. What is the president's legal exposure in this moment? How much trouble is he really in? The president faces massive legal exposure right now among a variety of fronts. And maybe one way of taking this in pieces is to think about the two different teams that the president is facing. One is the Mueller team. The second team he's facing is what's known as the Southern District of New York U.S. Attorney's Office. These are career prosecutors. They're kind of the most elite. They'll certainly tell you they're the

most elite of the elite prosecutors. And they are incredibly good at doing what they do, which is uncovering, you know, everything from terrorism investigations to financial fraud and the like. And they are the ones who have been assigned primary responsibility for the Michael Cohen piece of this. And in particular, whether campaign finance violations occurred. You know the Deputy Attorney General Rod Rosenstein well. You're both in the same legal circles. You've known him for some time. At the heart of this was his decision

to give this piece of the investigation to the prosecutors in New York. Correct. that we're now at a moment where the regulations that you created and the protections that would give sunlight into this and try and protect it from politics, that that doesn't extend to cover the investigation in New York. Isn't that bad? Well, there's theory and practice. In theory, the best thing to have happened was the special counsel regulations would be used. Maybe another special counsel appointed to investigate this other whole situation of Michael Cohen and the campaign finance violations and the like. That's not what happened here. But as a matter of practice, that might have been actually okay.

And the reason for that is that the president has been railing against the special counsel for 18 months, but took his eye off the ball when it comes to the Southern District of New York. They were allowed to do their job, so it looks. And the best evidence that we have that they were allowed to do their job is the filing that they made last Friday, which in an extraordinary document told the court that they have corroborating evidence, along with Michael Cohen's testimony, that the President of the United States directed the commission of various felonies. So while it's been theoretically possible for an attorney general, Sessions,

or a fake attorney general like Whitaker to interfere with the Southern District of New York prosecution, it looks like that hasn't happened here. Now, we don't know what we don't know. It's possible that there were other things that those prosecutors wanted to do that the fake attorney general stopped them from doing. We don't know that. But given that it leaves the investigation open to interference from the attorney general or the acting attorney general

or whoever's overseeing the investigation, if you were going to go back and write the regulations again, would you try and anticipate something like this, an outside investigation like what's happening now in New York and build in different protections? I think it would have been nice to anticipate that in our thinking. But at the end of the day, I don't think it would have actually changed anything about the regulations that we wrote. And the reason for that is once you started regulation, you know, Southern District, you get special protections, then I think we would have had Trump saying, oh, I wonder why they need special protections and go after it in exactly the same way. So it would have been self-defeating. I think, you know, whether or not this was Rod Rosenstein's genius or an accident of history, for one reason or another, the Southern District

prosecution appears allowed to have gone unimpeded by Donald Trump. So what does it look like this Southern District investigation was able to accomplish while the president was focused on the special counsel? So what happened last Friday is that the career prosecutors filed a memo, a sentencing memo, in the Michael Cohen case saying that Michael Cohen had committed these campaign finance felonies, that these campaign finance felonies, these hush money payments, were very serious violations going to the integrity of the election. And they most importantly said that Michael Cohen had committed these felonies at the direction and under the orders of individual number one, who we now know to be Donald Trump. That is an astounding thing. The last time I think anything like that happened is 1974 in Watergate, when President Nixon was named an unindicted co-conspirator. And legally here, this is the same basic thing. These are prosecutors saying, we have evidence,

and not just Michael Cohen's word, that the president ordered the commission of these very serious felonies. That's a big deal. It puts him squarely in the zone of criminal liability. And at this point, looking at everything we know, including the fact that Donald Trump was in the room with the National Enquirer head, Mr. Pecker, and Michael Cohen, when the hush money payments were made, it looks like the crime's been committed by Trump. I mean, obviously, he has, you know, guilt beyond a reasonable doubt and protections like that. But the evidentiary record is looking very, very damaging for Donald Trump right now. And so that means that he is looking at the very serious possibility of an indictment. And the question really is a timing question. Is it going to happen while he's in office or when he's out of office? And then it becomes really hard, actually, for any attorney general, even a fake one like Whitaker, to shut it down.

So, you know, I said before to you, theoretically, Whitaker could be interfering. Why would it be harder to shut this down? Because so much has already happened. They have too much evidence right now. So it's easy, if you can stymie an investigation at the early stages, it's easy to do the cover-up. But once the file is there and you've got Cohen saying, the president ordered me to commit these felonies, and you've got David Pecker, the National Enquirer chairman, saying the same thing, and both of them saying Donald Trump was in that room, an attorney general who tries to bury that, they bury their reputation. So at this point, the strongest thing keeping the Southern District of New York investigation together is public pressure and the risk that a government cover-up will be exposed.

But isn't it a little, is it troubling for you that at this point, you're someone who 20 years ago tried to imagine these kind of things, tried to build in different provisions, different checks on different parts of power. And here you are today, almost two years into Donald Trump's presidency, and you're saying, I think my faith in people doing the right thing is the best hope that we have. Sure, it is a scary proposition. I mean, I don't think it's just the blind faith I have. I mean, I think that, you know, two decades ago, we as a whole team of 18 of us really tried to see around every corner we could, but we knew at the end of the day we couldn't see around everything everything that there would be inventive ways of lawbreaking and interference and the like. That said, I do think that the system that's in place so far appears to have held up. You've had career prosecutors who've been able to do something pretty darn extraordinary. Say the president of the United States directed the commission of very serious felonies. You've got Mueller, who's able

to, so far, do his job and keep investigating and has indicted, you know, 25 or so individuals, including the president's national security advisor. I mean, when I was in the government, the national security advisor was like a step under God. I mean, that's how important they were. And to be able to indict, you know, someone of that magnitude or the president's campaign chairman, Paul Manafort, I do think that the system has been working pretty well. But what about the potential indictment of Trump himself? You said earlier that it's a question of timing, whether he'll be indicted while in office or after. But we know that the Justice Department policy says the president can't be indicted while in office or after. But we know that the Justice Department policy says the president can't be indicted while he's in office. So in that case,

how does all this information become public? How does it get to Congress if it's not being protected by the special counsel regulations? The information that the prosecutors have very well could be moved to Congress, and there's a few routes for that. There could be indictments of players in this hush money scandal, and the president wouldn't necessarily have to be named as a target of the indictment, could be a so-called unindicted co-conspirator. We already have some inkling of that in the Cohen sentencing memo, but there could be other documents, maybe other charges against other individuals that could shed more light on the story. That's number one. Number two,

the president himself could be indicted. Now, it is the case that the special counsel regulations say that the special counsel is supposed to follow Department of Justice policy, and it's certainly the case that the Southern District of New York has to follow Justice Department policy. But Justice Department policy here is not quite as clear as Trump has made it out to be. And in particular, there are memos that say a sitting president can't be indicted, but they're generic memos. They don't apply to a situation like this, in which the crime that's being alleged is one that allowed someone to get the presidency in the first place. You know, these are campaign contributions and hush money that very well could have swung the 2016 election. They may be considered the most significant campaign

contributions in the history of the United States, done days before an election at a time when the president was uniquely vulnerable. And I think we'd all have to worry about a world in which we incentivize candidates to try and lie and cheat to the utmost during the election phase in order to win and then get out a jail-free card, you know, a brass ring at the end of the day. That strikes me as a very dangerous place. So it's not quite clear. That strikes me as a very dangerous place. So it's not quite clear to me that there is a Justice Department policy. It also may be— So do you think the president could be indicted while in office? I do. I think that the president could be indicted. He may not be able to be tried in office because that might be too distracting in terms of the commission of presidential duties. But

I do think that there is a lot of wiggle room in those Department of Justice memoranda. So that's the second route. And a third route on the indictment is a state indictment. You know, the Justice Department memos only bind to the federal U.S. Justice Department. And some of the hush money stuff here involves shell corporations

and possibly fraudulent tax issues and the like, which could be violations of state law. And if so, there may be a state prosecutor like the New York attorney general who may decide to bring charges. And that, again, would bring that information to light, into sunlight, both for use in the criminal prosecution and as well potentially for the Congress in an impeachment proceeding. And that's why I do think at the end of the day, Donald Trump this week is facing a very different situation than he has in the two years of his presidency. He's looking at a Democratic Congress with all these powers, and most importantly, he's looking at career prosecutors who've said, Trump, you committed various felonies and you are likely going to jail.

These two twin events, I think, have massive consequences for him. What do you make of the president and his lawyers' argument that these campaign finance allegations won't stick, that the facts aren't there, the law isn't there, there's no way to bring anything related to that against him. Yeah, the president's defenses against the campaign finance violations are really weak.

You know, first he said he had nothing to do with the payments. He didn't know about them. That's what he said on videotape in April of this year. And then Michael Cohen played the tapes for the American public, for the world to hear. The National Enquirer said, no, you were in the room where these were negotiated. So that defense fell apart. a separate defense, which is the Edwards precedent, because Jonathan Edwards, as a senator, when he was running, took some hush money payments to a mistress whom he impregnated and was prosecuted for that. That Edwards defense totally boomerangs on the president. Actually, because what happened in Edwards is the judge said, if one of the reasons why these campaign contributions was made was to influence an election, that's a felony. And that's precisely the allegations that have occurred here. Didn't Michael Cohen's testimony undermine the argument that this is like Edwards? what the prosecutors needed to show to show Donald Trump committed crimes,

which is Cohen said that these payments were done for the purpose of influencing the election. And that was echoed by the National Enquirer, AMI, which said the same thing. And that's why the president is in such hot water right now.

He doesn't have a decent defense to the campaign finance violations, which are very, very serious. Thanks, Neil, for coming in. Thank you. It's a privilege to be with you. We good, guys? Okay. Do you really think they'll indict him?

I think they're going to ask, yeah. Because if they ask, it triggers the reporting. So I think they almost have to, particularly if they're worried about it. We'll be right back. Here's what else you need to know today. With five days left before funding runs out for much of the federal government, the Trump administration and congressional leaders remain at an impasse over the president's demand to fund a border wall,

raising the possibility of a partial shutdown. President Trump should understand there are not the votes for the wall. In the House or the Senate, he is not going to get the wall in any form. The president is insisting on $5 billion for the border wall, a figure that Senate Democratic leader Chuck Schumer, on Meet the Press, said that neither Democrats nor Republicans will agree to. on Meet the Press said that neither Democrats nor Republicans will agree to. He shouldn't use innocent workers as hostage for his temper tantrum to sort of throw a bone to his base.

But in an interview on CBS's Face the Nation on Sunday, White House policy advisor Stephen Miller said that the president would not back down from his demand. What is the president's plan and will he shut it down to get this $5 billion in border wall funding? We're going to do whatever is necessary to build the border wall to stop this ongoing crisis of illegal immigration. And that means shut down? This is a very, if it comes to it, absolutely.

This is a very fundamental issue. At stake is the question of whether or not the United States remains a sovereign country, whether or not we can establish and enforce rules for entrance into our country. The Times reports that even if Trump does come up with a funding plan supported by Republicans, that many House Republicans who either lost re-election or are retiring

have stopped showing up to work in the final days of their term, meaning Trump might lack sufficient votes to pass his plan. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.