To review. Donald Trump is manifestly unfit to serve as President of the United States, by either mental capacity or moral character. The procedure for removing an unfit President is basically by way of impeachment. I’ve covered removal for mental incapacity by the 25th Amendment before, and maintain my view that it may still come into play as a shortcut, but let’s follow the CW that it’s down to impeachment. I will also follow constitutional lawyer Stephen Griffin’s argument that contrary to the intentions of the authors of the US Constitution, who saw impeachment as an essentially political safeguard, conviction now requires proof of an indictable offence – though I would add that nothing stops the Congress from taking wider aspects into consideration. Griffin’s reasoning is even more convincing in the near-certain political environment for Trump’s impeachment: that is, a Democratic majority in the House after November, but either a continued narrow Republican majority in the Senate, or a large blocking minority. (If the GOP holds the House, it won’t arise at all.) It will take a knockdown case to secure conviction.
So far, the possible charges have been:
1. Collusion with agents of the Russian government to manipulate the Presidential election in 2016.
2. Obstruction of justice by interference in the investigation of 1.
The second is a matter of public record: Trump admitted on TV that he fired James Comey as Director of the FBI because of the Russia investigation. The trouble here is that lying to police officers investigating you as a suspect is widely seen as fair self-defence, a technical crime like speeding on an empty rural road. The counterargument is that higher standards apply to the head of the executive, including federal law enforcement, who has sworn an oath to uphold and enforce all the laws. This is not likely to sway Trump’s core supporters, who are also now also the core supporters of Congressional Republicans.
The former is overwhelmingly likely from the Steele dossier, numerous credible press accounts of funding flows and meetings involving Trump’s inner circle and Russians close to the Kremlin, the charges against and convictions of Papadopoulos, Flynn, Manafort, Gates, and van der Zwaan, and Trump’s pattern of leading over backwards in favour of Russian interests in foreign policy. Mueller is no doubt filling out the details. The trouble is that Vladimir Putin is a career intelligence officer trained (partly in his work with Mischa Wolf’s Stasi) to cover his tracks with great care, and unless Mueller gets very lucky there won’t be conclusive evidence of the involvement of the Russian government. It will all just be persons “close to” Putin. Again, there will be a reasonable doubt that Republican senators can draw on to justify a vote to acquit.
But now, for the first time, we can see the outline of a third charge that could in principle be proven conclusively and has no such ambiguities: bribery.
The story is incomplete and in some parts speculative. But it stacks up.
Trump’s personal lawyer, a mob-connected sleaze called Michael Cohen, accepted large sums of money from companies. Bloomberg:
Cohen’s shell company, Essential Consultants LLC, received a total of $4.4 million in payments from a range of sources with an interest in influencing Trump, including the pharma giant Novartis AG [$1.2m], Korea Aerospace Industries Ltd. [$150,000} and AT&T Inc. [$200,000], seeking to pull off its merger with Time Warner Inc.
Cohen’s shell company also received a payment from
a New York-based investment firm called Columbus Nova. The firm’s biggest client is the Renova Group, a conglomerate controlled by the Russian billionaire Viktor Vekselberg, who has already been interviewed by special counsel Robert Mueller’s investigative team.
The source of this remarkably detailed information is Stormy Daniel’s lawyer Michael Avenatti, a high-profile LA ambulance chaser who appears, unlike the Trump legal team, to know what he’s doing. A commenter of Josh Marshall’s who works in financial compliance says that the format of the documents is exactly that of the SAR reports that bank officers like him file of suspicious transactions. How would Avenatti know this if he’s making it up?
It’s obvious that Cohen had no useful expertise to offer on pharmaceuticals policy, telecoms mergers, or aerospace contracts: beyond his skills as a fixer, his professional expertise is limited to New York real estate and the taxi business. It may be provable that the companies were paying for access to and influence with Trump.
Did they get it? If Cohen suckered them and gave nothing in return, no. But Cohen lazily used the same shell company to pay off Stormy Daniels ($130,000) and Shera Bechard ($1.6m) in return for non-disclosure agreements about extramarital affairs. Cohen even reused the same NDA template, down to the pseudonyms.
An aside on Bechard. Her affair is supposed to have been with Elliot Broidy, another sleazy associate of Cohen’s. Paul Campos has a very plausible speculation that the affair was not with Broidy (a very rich convicted felon with no reputation to lose, and stably married) but Donald Trump, who has a pattern of pursuing Playboy models and having unprotected sex with paramours, and a vital interest in Bechard’s silence. Shera Bechard claimed in the negotiations that she conceived a child from the affair and had an abortion, though the hush agreement does not recognize the claim. (Source, citing the WSJ verbatim).
It all looks as if Essential Consultants was a simple slush fund. It took in (inter alia) bribes from corporations and Russian oligarchs, and (inter alia) paid out to Trump’s discarded mistresses. The sequence seems to have been the reverse, which changes nothing, except that it introduces the need for a temporary financier. If this is all so, Mueller or the US Attorney for New York can fairly easily prove it.
The missing component of the smoking gun is evidence that Trump was aware of Cohen’s manoeuvres on his behalf, or received part of the take. It is possible that Cohen was just acting on his own as a conman, but it does not seem likely. Did they talk? To put it mildly, neither of them has anything like Putin’s tradecraft, or even much common sense. They should have talked only face to face, outdoors in the Rose Garden. But Cohen is reputed to have recorded phone conversations. Trump has always bluffed his way out of trouble, which does not work against the likes of Robert Mueller. Somewhere, there may well be a recording or document that pins Trump down to the crime of bribery.
Oddly enough, Trump has just announced that after all he won’t be pursuing his campaign promise to allow Medicare to negotiate down drug prices. This is naturally quite unconnected to Novartis’ $1.2 million paid to Cohen. Or is it? Maybe Novartis got their money’s worth. Note to other amoral CEOs: AT&T are still being blocked by the DOJ over their merger plan, so got nothing for their $200,000. But Korea Aerospace ($150,000) are on track to share in a big contract for trainer jets, so Cohen’s implied fee scale is confusing.
Comments especially welcome on the law here. The statutory provision is 18 U.S. Code § 201. It certainly covers indirect payments through an agent like Cohen, and does not SFIK require that the corrupt contract be performed. An interesting wrinkle is that it’s a two-place crime: if there’s a briber, there must be a reciprocal bribee. But the trials can I suppose be separated. What if the US Attorney for New York indicts and secures a conviction against Novartis for bribing the President of the United States?
I suggest this charge would not work out as well politically for Trump as obstruction or collusion. It’s a simple and understandable offence, and the evidence (if it’s there) will likewise be simple and incontrovertible. Trump’s base won’t like it: especially if Campos’ theory about Ms. Bechard pans out. Paying for an abortion out of a bribe is not something evangelical voters can just brush off. If a good part of his base abandons him, then a conviction in the Senate enters the bounds of possibility.
You have to be sorry for Shera Bechard. She has sought to defend her privacy rather than exploit the notoriety like her successor Stormy Daniels. But it’s gone now. Pin on your scarlet letter (A for Adulteress, A for Aborter, A for Advocate, A for American); and wear it with courage and pride to bring down your former lover, a bad man who should never have become President of your country. We shall all be greatly in your debt.