YouTube video

The revelations in Michael Cohen’s guilty plea could be the beginning of Trump’s unraveling. The lies and laws broken may spark a constitutional crisis.  We explore the case with Doug Colbert, Professor at the University of Maryland School of Law

Story Transcript

MARC STEINER: Welcome to The Real News Network. I’m Marc Steiner. Good to have you all with us.

I don’t even know where to begin sometimes, so let’s try this. Michael Cohen testified in court, and plead guilty. And he plead guilty to tax evasion and bank fraud. But he also pled guilty and implicated the president to violating campaign finance laws by paying off Stormy Daniels. Now, we know the president has said this didn’t happen. When it first came up to him on an airplane, no, no, no, he says. I didn’t do this. This never existed. The question is, how deep is this? What does it mean? This is a major- could become a major constitutional crisis for this president. Think about this: If any other president in our history- Barack Obama or anybody who had been president of the United States- had six of his people- excuse me, no, seven of his people found guilty, pleading guilty to crimes, what would be happening to that president at this moment?

So Michael Cohen is the tip of the iceberg. But it’s a tip of the iceberg that seems to be exploding around us. And what does it all mean legally? What does it mean Constitutionally? And what could be those political consequences of these acts? Joining me in studio here is Doug Colbert. Doug Colbert is a professor of law at the University of Maryland School of Law, and is joining us to kind of bring his thoughts and ideas about what this means on all those levels- he’s both an attorney, Constitutional expert, and he’s a political activist around in one. So we have three guests in one here. Doug, welcome. Good to have you here.

DOUG COLBERT: Good to be here, Marc.

MARC STEINER: So I really don’t know, sometimes, where to begin with this story. But when this first broke, we had a president who said that he never heard- this was something new to him. He didn’t pay off Stormy Daniels. Let’s play this quick clip of this.

REPORTER:: Did you know about the $130,000 payment to Stormy Daniels?


REPORTER:: Then why did Michael Cohen make it, if there was no-.

DONALD TRUMP: You’ll have to ask Michael Cohen. Michael’s my attorney, and you’ll have to ask-.

MARC STEINER: So he says no. I don’t know what’s happening. And of course, many people didn’t believe that from the very beginning. This administration has been known for its lies. Before we jump to our guest here, let me play one more clip. We’re going to jump to a clip from this morning, that President Trump was visiting his friends at Fox News. And this is what he had to say.

DONALD TRUMP: Almost everybody that runs for office has come for campaign violations. But what Michael Cohen plead to weren’t even campaign related- they weren’t crimes.

REPORTER: Why is he doing this? Why- he’s your attorney.

DONALD TRUMP: Because he made a great deal. Because he was in another business, totally unrelated to me, where I guess there was fraud involved, and loans, and taxicabs, and all sorts of things. Nothing to do with me. Because he had an outside business. You know, they make up stories. People make up stories. This whole thing about flipping, they call it. I know all about flipping. For 30, 40 years I’ve been watching flippers. Everything’s wonderful, and then they get 10 years in jail and they they flip on whoever the next highest one is, or as high as you can go. It almost ought to be outlawed. It’s not fair.

MARC STEINER: And I think Mr. Trump also knows about lying. But we can talk about that in the midst of all this. Doug?

DOUG COLBERT: Well, Marc, this past Tuesday was a terrible Tuesday for Donald Trump. It was probably one of the worst days since he’s been in office as president. Because his former lawyer and his former campaign manager each were convicted of eight different crimes in federal court. And so the Special Prosecutor and the Manhattan prosecutors are following the evidence. And by following the evidence they’re able to come forward with the truth of Donald Trump’s involvement in different parts of his lawyers’ efforts to silence two major witnesses against him.

According to his attorney Michael Cohen, Donald Trump, as a candidate, directed lawyer Cohen to pay $150,000 to the Enquirer newspaper in order to silence a former Playboy model, Karen McDougal. And then lawyer Cohen paid directly $130,000 to Stormy Daniels. Each of the women had claimed that Donald Trump had sexual relationships with them. Obviously that information would have done a great deal of damage to his electoral hopes. So what we’re seeing here are very serious violations of the federal election law. These are not just transactions where people forgot to file, or were late in filing, or inadvertently left out information. This is- Donald Trump is an unindicted coconspirator. Namely, he was aware and knew that this money was being paid to silence people as a way of not influencing his campaign in a negative way.

MARC STEINER: So one of the things that Donald Trump said, though, is that I paid this money out of my own pockets. This is not violating federal campaign election laws. There’s a big discussion about that right now, whether that is real.

DOUG COLBERT: Well, individuals have limitations on how much they can contribute to a campaign. My understanding is that the, that his campaign funds reimbursed lawyer Cohen for the money that Cohen laid out for Trump. So it’s difficult to see that this is not a very important part of the campaign to elect Donald Trump. And in terms of paying the newspaper basically to buy the story and to make sure it never appeared in print, that again seems to be very much intended to influence a campaign.

Campaign contributions can be in kind contributions. They’re not always direct payments. In other words, you’re doing something where you’re giving a candidate some benefit that’s hopefully going to elect that person to the office that he or she is running for. And in this situation, what Mr. Cohen swore under oath in federal court is that it wasn’t only his act. He was following what his client wanted. He was doing exactly what his client wanted, which was to make sure that Stormy Daniels and Ms. McDougal never came forward with their narratives.

MARC STEINER: So what is it- describe, delineate for us what it means to be an unindicted coconspirator, when you used that term a moment ago to describe President Trump, in terms of this trial.

DOUG COLBERT: Sure, it’s the same thing with Richard Nixon. He was an unindicted coconspirator. And the issue there, Marc, has a lot to do with whether you can indict and prosecute a sitting president while in office. But if you are unindicted, you’re still named as part of the criminal conspiracy. And in this case, Donald Trump allegedly played a very important role in that criminal conspiracy, which was to silence people from coming forward, and being able to tell his lawyer, pay what, do you need to do.

Now, again, as somebody who teaches legal profession, there are some very serious ethical issues whenever a client tells a lawyer-

MARC STEINER: For Mr. Cohen, you mean.

DOUG COLBERT: For Mr. Cohen. Because whenever a client tells a lawyer, you know, get rid of the evidence or pay off a witness, well, the lawyer is complicit in that criminal act. If a lawyer doesn’t know, and I certainly hope my students know this, that they cannot do anything that the client asks you to do, once you engage in a criminal act you’re as much the defendant as the individual who’s committing the actual act itself.

MARC STEINER: So in this particular case- let me just read this piece of the Constitution, here. And you’ll see this, folks, on our screen here now. And I’m going to read-. There’s one section in the Constitution that may have some relevance here. We’ll talk about what this means. I’ll say up front that neither Doug nor I who, for the Constitution, think of ourselves as originalists. But the original idea of the Constitution so sticks with how we interpret it for now and what those things mean. So let me read this to you.

This is Article 2, Section 4. The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.

We don’t expect the impeachment process to happen in this particular moment in Congress. But what does that mean? And how does that particular clause relate to what’s being faced by the President and the Republican Party?

DOUG COLBERT: Well, let me just, let me just qualify what you said in terms of not being an originalist. Whenever we’re interpreting a particular portion of a written document- in this case, the Constitution- we’re always interested in what was the intent of the framers, of the people who wrote that particular law. So we’re always interested in understanding intent. The difference is that original intent people stop the clock at the moment when that document was written. And what we do, as people who believe in a living Constitution, is we take into account the past. But then we see the Constitution as an evolving, living document that changes to reflect the values of the people who live in our country, in our society today. And so when we look at the, at the Constitution as it was written, we have to be aware that the language says high crimes, or, or serious crimes, or high misdemeanors.

So what we’re looking at here in terms of what Mr. Cohen plead guilty to, and where he brought Mr. Trump into the conversation, is that there was an effort to undermine the integrity of the national election. Because when you’re, again, when you’re using money to silence people, that in effect is keeping the voters from making an informed choice.

And so what we want to look at in that language is if we believe Mr. Cohen- and the, you know, the attorney swore under oath to the truth of those statements. And he has a lot to lose if he wasn’t telling the truth. If we believe Mr. Cohen, then candidate Trump was very much involved in those felony crimes, and he becomes an unindicted coconspirator, to denote the fact that he was responsible as a coconspirator with the criminal acts.

MARC STEINER: I’m really curious to explore here for a moment what that means for the political future if you cannot indict or prosecute a president while he or she is in office. I going to come to that. Leading up to that, one of things you said before we went on air here together was that the lawyers in this case, around all the other people who are being prosecuted by Trump- prosecuted who worked for Trump, or worked in Trump’s world, many of whom implicated Trump; he’s been implicated in terms of the cases that they’ve been fighting in court. And we’ll talk about those men in a minute. That the lawyers now are playing the role that John Dean played during the Nixon ministration that led to his impeachment. So describe what you meant by that.

DOUG COLBERT: Well, what I mean is that Michael Cohen is coming forward with truth in the same way that John Dean came forward with truth when he testified under oath, and when he gave other statements about the conduct that President Nixon engaged in. And when you have lawyers like Michael Cohen, formerly Mr. Trump’s attorney, and Donald McCain, who- you know, White House counsel- who also apparently spoke to Special Prosecutor for roughly 30 hours, is what was reported, you know that the lawyers are playing a very important role in trying to get to the facts of what actually happened here. And I actually think that the Special Prosecutor is-.

MARC STEINER: Mueller, we’re talking about.

DOUG COLBERT: Mueller, and the prosecutors in New York who prosecuted Cohen, they’re also playing a very important role here. The one place where the politicians are not going to be able to touch a prosecutor who’s doing a conscientious job is that prosecutor is duty bound to follow the evidence, and should not- and is not going to be influenced by the political factors, if they’re doing their job properly.

And so what I’m seeing here is that attorneys- even though a lot of times people are very critical of lawyers. But the lawyers in this case- Rod Rosenstein, another one- really following his oath, his duty as- a prosecutor’s duty is as a minister of justice. That’s the ethical rule. It doesn’t matter what the outcome is. It matters that you’re doing what’s right, what’s fair, what’s, what’s needed. And in these situations I’m looking at lawyers coming forward, and they’re doing what needs to be done. And that’s a place where President Trump is not having control even over Jeff Sessions, or Mr. Rosenstein. He’s not able to do what he’d like to do, which is to fire the whole group of them. But if he ever did something like that, I think he would take a shellacking from our elected officials.

MARC STEINER: We’re going back to the 1700s, when the debates were happening on the Constitution among the founders of this country. One of the things they debated was, discussed, was a president should not be corrupt. The government should not be corrupt. We should not live under the tyranny, as in a monarch in Great Britain. And those things are all coming into play at this moment, in terms of what we’re seeing in this particular presidency. And I’m wondering what it means and what the law is when it comes to not being able to prosecute a sitting president.

DOUG COLBERT: Well, there’s two different things here. One is the impeachment process of removing someone from office. Of course, that’s going to be decided both in the House of Representatives, which brings the charges in the Senate where the trial actually takes place. And then you have the situation of whether a sitting prosecutor, in this case the Special Prosecutor, would have the authority to charge a sitting president with the crime. And that’s an open question mark. The Justice Department has taken the position that you cannot charge and prosecute a sitting president, because the president has so many duties to fulfill, and it would really interfere with the president’s obligation to serve the people. But that doesn’t mean that the Supreme Court or any other court that ever had to answer that legal issue would not find differently. But that, that’s never been decided yet.

I personally think that the president is not above the law. And that for a president who’s committing serious crimes while in office, that that president should be treated like every other one of us who would be committing serious crimes in whatever office or job we’re holding, as well. So what we’re looking at now is whether or not the political process is going to allow the impeachment of a president for serious crimes and high misdemeanors.

MARC STEINER: And I’m not going to hold my breath for that at this point. The political reality is there’s an election going on. Republicans are in charge of both the House and the Senate. Many Republicans are trying to run away from Donald Trump at this moment, terrified of what this means. Others are winning elections because they’re supported by Donald Trump. It’s a very complex political time in that way. So if anything happens, it seems to me to be later than sooner, in terms of the politics.

DOUG COLBERT: I’m giving Mr. Mueller a great deal of credit here for really toeing the line. I mean, there’s been so many efforts to distract him, to get him to renege on his commitment. And he and his prosecutors are just keeping the straight and narrow here. They’re collecting the evidence. And Marc, I also think that this case is actually headed right for Mr. Trump and his family.

MARC STEINER: So very quickly here, before we conclude. There’s a lot of people who have criticized Mueller from, for not moving fast enough. So how do you how do you respond to that? As someone who’s known how these kinds of things work, is he moving too slow? Or is that just a-.

DOUG COLBERT: We warrant our prosecutors, our elected officials, who have such a awesome power, to be thorough and methodical and disciplined, not just aimlessly charge some people with crimes, matter who the person is. I would like to see that in all of our cases, because oftentimes the system works too quickly. And what’s happening now is there’s a lot of evidence being collected. We still don’t know if President Trump is going to be deposed. But what we also know is that there are civil suits that are being filed against the President, and that may be the place where we get sworn depositions.

MARC STEINER: It’s complexity we have to walk our way through. The picture you’re about to see up on the screen right now is of Paul Manafort. And just look at this man for a moment. And I’m going to name some other men as we go through, before we conclude here just a minute with Doug Colbert. So we have Paul Manafort, who on August 21 was convicted of tax fraud, bank fraud, and failure to disclose a foreign bank account. And then there’s Rick Gates, February 2013 plead guilty to financial fraud and lying to investigators. Then there’s Alex van der Zwaan, on February 20 pleaded guilty to lying to investigators about conversations with Mr. Gates. And Richard Pinedo, on February 12 pleaded guilty to identity fraud. And then there’s Michael Flynn, former National Security Adviser, pleaded guilty to lying to the FBI about conversations with the Russian ambassador. And then there’s George Papadopoulos, who plead guilty on October 5 to lying to the FBI. All these people had relationships with Trump as campaign advisers, lawyers working for Manafort, and Gates, and more. And I said, as I said the top of the show, imagine if this was happening and Barack Obama was president, or George Bush was president, or any other presidents we can remember, were actually facing this kind of pressure at the moment.

So to conclude very quickly here, Doug, I’m curious as to your analysis of what this both means politically and legally, and where all these things might take us.

DOUG COLBERT: Well, this is the biggest challenge to our democratic Constitutional system. We are a system of checks and balances. We are seeing that some of those checks and balances are not working, because they’re under the control of the same political party. And of course, the selection ofMr. Kavanaugh would again allow those forces, the Republican forces, to control the Supreme Court.

But we also have other ways of making sure that our elected officials follow the law. And the selection of a special prosecutor, and the fact that that person is still in office despite efforts and attempts to remove him, says a lot about how strong our system is. I would be most concerned if anything happened to Mr. Mueller’s investigation, or if there was ever an attempt to quash the public report that’s going to be forthcoming. Because that’s the place where the public need to know. As James Madison once said, we are the ultimate audience, where we must know what is happening in our government. And that’s why I am feeling much more confident today than I was a few days ago that we are getting closer. And I expect that Mr. Mueller will move next towards some of Mr. Trump’s most intimate family and associates.

MARC STEINER: Thanks, Doug Colbert, so much for joining us today. It’s been a pleasure to have you with us.

DOUG COLBERT: It’s a pleasure to be here, Marc.

MARC STEINER: And folks, stay tuned here to The Real News Network. We’re going to keep following these cases, because this is critical to our democracy in the future, and The Real News Network is a place that you should be part of and watching to see how this unfolds for you and the rest of our nation. And I’m Marc Steiner for The Real News Network. Thank you so much for being with us. Take care.

Creative Commons License

Republish our articles for free, online or in print, under a Creative Commons license.

Marc Steiner Headshot

Marc Steiner

Host, The Marc Steiner Show
Marc Steiner is the host of "The Marc Steiner Show" on TRNN. He is a Peabody Award-winning journalist who has spent his life working on social justice issues. He walked his first picket line at age 13, and at age 16 became the youngest person in Maryland arrested at a civil rights protest during the Freedom Rides through Cambridge. As part of the Poor People’s Campaign in 1968, Marc helped organize poor white communities with the Young Patriots, the white Appalachian counterpart to the Black Panthers. Early in his career he counseled at-risk youth in therapeutic settings and founded a theater program in the Maryland State prison system. He also taught theater for 10 years at the Baltimore School for the Arts. From 1993-2018 Marc's signature “Marc Steiner Show” aired on Baltimore’s public radio airwaves, both WYPR—which Marc co-founded—and Morgan State University’s WEAA.