Noah Feldman, Bloomberg - The Southern District can investigate potential Trump crimes in any area connected to Cohen, a fixer who is known to have arranged payoffs to an adult film star who says she had an affair with Trump. These prosecutors can go back as far as they want before the election, not to mention during and after it.
And there’s essentially nothing Trump can do about it. He can’t fire the career civil servant prosecutors who are now on the job. And practically, he can’t order the Southern District to stop investigating him, because such an order would likely be construed by the prosecutors there as a criminal obstruction of justice.
The Southern District team can’t bring Trump to trial while he is president. But if it finds evidence of felonies involving Trump, the team could name him as an unindicted co-conspirator in charges against Cohen. That would tell the world that the president is a crook. It would put substantial pressure on Congress to impeach Trump. And, after Trump’s presidency ends, whether at the end of his term or before, a criminal prosecution could await. The prospect of a trial would loom over whatever time in the presidency he has left.
... That’s why it was a master stroke for Rosenstein -- presumably with Mueller’s agreement and probably prompting -- to assign the Cohen investigation to the regular career prosecutors in New York. The letter doesn’t apply to them. Their job is to investigate any crime of any kind that occurred within their jurisdiction, which the office traditionally interprets extraordinarily broadly to include, in essence, the whole world.
That means the Cohen investigation can’t be blocked by firing Mueller. It now very literally has a life of its own. And this investigation can go after any aspect of Trump’s life that might be relevant to potential crimes by Cohen. That includes crimes that Cohen may have committed on behalf of Trump.
Imagine, for example, that Cohen structured financial transactions to hide payoffs -- keeping withdrawals just small enough to fly under a bank’s radar. That would be a felony. If Cohen did so with Trump’s knowledge and on behalf of Trump, that could easily be charged as a federal conspiracy that would make Trump criminally liable for Cohen’s conduct. That’s how easy it would be for the Southern District prosecutors to connect Trump to federal crimes.
If Trump is implicated in Cohen’s actions, the Southern District probably wouldn’t charge the president while he’s in office. Current Justice Department guidelines say that the president shouldn’t be criminally charged while in office. (Whether that’s a constitutional requirement is under dispute, and the team that investigated Bill Clinton argued that a sitting president could be criminally charged.)
But the Southern District prosecutors wouldn’t have to charge Trump. They could simply name him as an unindicted co-conspirator while charging Cohen, as a grand jury named Richard Nixon in the coverup of the Watergate burglary.
.... Meanwhile, Trump would not be able to do anything about it. A potential felony charge would hang over his presidency. On leaving office, he could face charges and even prison.
That would create a huge incentive for Trump to resign and wait for Mike Pence to pardon him.
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