Donald Trump has been accused of many things over the years – sometimes unfairly. But does this latest accusation mean Trump could finally be charges with a crime? It seems like he came pretty close: CNN senior legal analyst Elie Honig’s new book claims that as then-President Donald Trump was preparing to leave the White House in 2021, federal prosecutors in New York were debating whether to charge Trump with campaign finance crimes the moment he left office.
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The prosecutors, from the Southern District of New York that oversees New York City, apparently accumulated sizable evidence against Trump as a collateral effect of efforts to prosecute former Trump attorney Michael Cohen in 2018.
Cohen, you may remember, was under investigation for his role in providing hush money to two women claiming affairs with Trump, one of whom was adult film star Stormy Daniels. The prosecutors did not consider bringing charges against Donald Trump at the time because he was still the sitting president and the sitting president cannot be indicted.
Yet as Trump prepared to leave office, the acting US attorney, Audrey Strauss, led discussions with other prosecutors to discuss the evidence that had been gathered against Trump. “They decided to not seek an indictment [against] Trump for several reasons,” CNN reported, “including the political ramifications and the fact that Trump’s other scandals, such as efforts to overturn the 2020 presidential election and the January 6, 2021, insurrection, “made the campaign finance violations seem somehow trivial and outdated by comparison.””
As one person familiar with the Strauss discussions told Honig, “we were well aware of the prudential reasons why you wouldn’t charge a president, even after he was out of office.”
Could Donald Trump still be prosecuted?
Manhattan District Attorney Alvin Bragg seems to be reconsidering whether to charge Trump for the hush money scheme. Bragg hosted Cohen recently – for the first time in over a year – indicating that there may be movement against Trump on the hush money front.
A lot of the leg work toward a Trump prosecution has already been carried out. Prosecutors had created a draft indictment of Cohen that included “exhaustive detail of Trump’s central involvement in the hush money scheme,” Honig wrote.
“The draft Cohen indictment was a full accounting, running over fifty pages in one iteration – essentially both a formal indictment of Cohen and a public excoriation of Trump, only without charges attached,” Honig wrote. “The SDNY’s draft indictment left no doubt: Trump wasn’t merely a bystander or an unwitting beneficiary of the campaign finance crime. He was the driving force behind the scheme, and likely criminally liable for it.”
The final draft of the indictment against Cohen scaled back the language against Donald Trump, however – who was referred to only as “Individual-1.” Although, for a time, the prosecutors debated whether to list Trump as “Co-conspirator 1,” which would have been inflammatory.
Actually, the DOJ’s principal deputy associate attorney general said the “co-conspirator” label would have been “unfair to Trump” because he was not being charged with a crime and that his reputation would be harmed and challenged, without giving him “a formal mechanism to defend himself.” So, prosecutor’s settled for the “Individual-1” label.
Cohen did ultimately plead guilty, stating that he worked “in coordination and at the direction of a candidate for federal office.” The New York prosecutors were eager to take on Trump then – but hindered by political considerations (and the DOJ).
Maybe the prosecutors will “circle back” and take another look at bringing charges against Donald Trump – it seems like just about everyone else is.
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Harrison Kass is the Senior Editor at 19FortyFive. An attorney, pilot, guitarist, and minor pro hockey player, Harrison joined the US Air Force as a Pilot Trainee but was medically discharged. Harrison holds a BA from Lake Forest College, a JD from the University of Oregon, and an MA from New York University. Harrison lives in Oregon and listens to Dokken.