The quote in the title is from the former U.S. Attorney for the Southern District of New York, David Kelley
David Kelley, made news by stating that the office he used to run may legally indict a sitting President, if warranted by a serious charge, regardless of a DOJ policy memo suggesting the opposite.
One extremely significant exchange during the House Oversight Committee’s hearing on Wednesday:
Rep. Raja Krishnamoorthi (D-Illinois) — “Is there any other wrongdoing, or illegal act that you are aware of, regarding Donald Trump that we haven’t yet discussed today?”
Michael Cohen — “Yes. And again, those are part of the investigation that’s currently being looked at by the Southern District of New York.”
There is no way to know for certain which of Trump’s many (alleged) criminal acts to which Mr. Cohen is referring.
But Rachel Maddow makes a good argument for one:
The president’s role in a conspiracy to conceal (cover up) the illegal payments to Stormy Daniels
The payment itself was already determined to be illegal. It is one reason Cohen is going to prison.
The initial payment to Ms. Daniels was made by Michael Cohen directly.
This resulted in two of the counts for which he pleaded guilty:
- One count of willfully causing an unlawful corporate contribution
- One count of making an excessive campaign contribution at the request of a candidate (Trump) for the “principal purpose of influencing [the] election”
What is significant, and why I believe this is one of the most dire situations for Trump, is that
while these two crimes were committed before Trump became president, the cover-up carried on into Trump’s presidency
And because checks were written from Trump’s personal account and also from Trump Org. Trust, this conspiracy now may include the President, his primary business, Don Jr., and the current CFO of Trump’s business, Allen Weisselberg.
Yes, this is a conspiracy that likely involves:
- Candidate Trump
- President Trump
- President Trump’s eldest son
- Trump Organization’s current CFO
- and of course, Michael Cohen
Michael Cohen is going to jail for COMMITTING these crimes. Yet he had not been charged with the conspiracy to commit them.
Committing a crime is one thing.
Conspiracy to commit THAT SAME CRIME is much more serious
This Conspiracy Theory Should Worry Trump
When two or more people join together to break the law, as Michael Cohen says he and the president did, the penalties can be harsh.
By Neal K. Katyal Aug. 23, 2018[…]
Prosecutors use the conspiracy doctrine to punish two or more people who merely agree to commit a criminal act.
They don’t even have to actually perform the act; they just need to have agreed to do so. The idea behind conspiracy liability is that when two people agree to commit a crime, it’s much worse for society than when a lone actor does. A Yale Law Journal article I wrote on this subject was inspired by a riddle:
Why is it that if you sell a joint, you get a six-month sentence, and if your friend sells a joint, he gets a six-month sentence, but if you both agree to sell a single joint, you get a five-year minimum sentence?
The outcomes seem really odd because it looks as if the same crime is getting different punishments.
The answer is that it isn’t the same crime, and hasn’t been thought of that way in the Anglo-American legal tradition for over 500 years.
Rather, conspiracy has always been a separate offense, punished independently without calibration to the underlying crime.
So conspiracy to sell a joint can be punished the same way as conspiracy to sell a kilo of marijuana.
Why would the law be written that way? The answer has to do with the harm to society when individuals agree with one another to commit criminal acts.
These acts are seen as possessing a higher level of moral culpability and are also more dangerous. Two people can often do more harm than one.
And those criminal economies of scale are sometimes supplemented by psychological dangers. People tend to take more risks in groups than alone. For these reasons, the law has always treated conspiracy harshly.
Indeed, for much of American history, conspiring to commit an immoral but not illegal act was itself punishable as conspiracy.
“Rather, conspiracy has always been a separate offense, punished independently without calibration to the underlying crime.”
So, Michael Cohen was not indicted for, nor accused of, conspiracy. The Mob-fighting, RICO-wielding, highly successful Southern District of New York decided not to.
Perhaps because they were waiting to indict Donald Trump himself with Conspiracy. And perhaps this is one of the “other wrongdoing, or illegal acts,” of which Cohen spoke, in his sworn testimony.
I hear you saying, “but, but, but a sitting president can’t be indicted!!”
In an exclusive interview on MSNBC’s The Beat, the former U.S. Attorney for the Southern District of New York, David Kelley, made news by stating that the office he used to run
may legally indict a sitting President, if warranted by a serious charge, regardless of a DOJ policy memo suggesting the opposite.
That issue has been a major controversy as Michael Cohen details the SDNY’s probe into Trump, and Kelly also says if new allegations against Trump ally David Pecker are true, the SDNY could cancel his immunity deal.