The presumption of innocence is essential to the American legal system. Sometimes prosecutors and the press need to be reminded of this. It’s not as often that the allies of a defendant, or even a prospective defendant, forget.
Yet allies of President Trump have made some peculiar comments over the last few days, as Jonathan Chait, Josh Barro, and Orin Kerr note. Anthony Scaramucci says Michael Cohen would not flip on Trump because he is “a very loyal person.” Alan Dershowitz, enjoying a strange encore act as Trump’s most prominent legal defender, told Politico, “That’s what they’ll threaten him with: life imprisonment. They’re going to threaten him with a long prison term and try to turn him into a canary that sings.”
Jay Goldberg, who represented Trump in the 1990s and 2000s, told Trump that he needs to be concerned that Cohen will not protect him. “You have to be alert,” Goldberg said. “I don’t care what Michael says.” (The president’s armada of former lawyers, and Trump’s reluctance to ever fully banish anyone, mean that sort-of-former lawyers keep popping up left and right, with advice solicited or not.)
Even Cohen, in his frantic effort to demonstrate his loyalty, has made the error. “I’d rather jump out of a building than turn on Donald Trump,” he told Donnie Deustch.
Turn on him with what, exactly? As Chait and Barro write, these people are at least aspirationally standing up for Trump, and yet their comments have a clear subtext of guilt. They all start with the premise that Trump has something to hide. You can’t flip on someone unless you’ve got something to offer prosecutors. Usually, the defenders of suspects in prosecutors’ cross-hairs loudly proclaim their innocence, and insist that the investigation will ultimately vindicate them. But Trump’s chorus is singing from a different hymnal.
The same worry underlies agitation from the White House about Special Counsel Robert Mueller extracting a guilty plea and offer of cooperation from Rick Gates, the former deputy campaign manager, and about the pressure Mueller is putting on Paul Manafort, the former campaign chairman. Since Manafort was the campaign chair, the only person Mueller could really want him to turn on is Trump himself; and since indictments against Manafort suggest a very strong case, the special counsel presumably doesn’t need Gates to turn on Manafort, and wants his help in getting information on Trump, too.
The appearance of having something to hide also hovers behind Trump’s threats to fire either Deputy Attorney General Rod Rosenstein or Mueller. While there are Trump allies who can concoct claims of wrongdoing by either one, it’s clear that the real point is to restrict the special-counsel probe. Besides, Trump already fired James Comey and said it was because he was upset about the Russia investigation, so there’s precedent. (Trump contradicted his own prior explanation this week.)
Implicit guilt also shadows rumors about Trump offering pardons to Michael Flynn, the former national-security adviser, and to Manafort, as well as the message-pardon granted to Lewis Libby last week. And when Trump seethes at Mueller investigating his financial affairs, and declares the Trump Organization to be on the wrong side of a red line, one wonders what he is so worried about.
Left-leaning pundits are not alone in picking up on this tension. In March, after then-Trump lawyer John Dowd called for an end to the Mueller probe, Representative Trey Gowdy, the GOP chair of the House Oversight Committee, expressed surprise.
“If you look at the jurisdiction for Robert Mueller, first and foremost what did Russia do to this country in 2016. That is supremely important and it has nothing to do with collusion,” he said. “So to suggest that Mueller should shut down and that all he’s looking at is collusion, if you have an innocent client Mr. Dowd, act like it.”
One obvious response to this is to assume that the reason Trump’s lawyers and other allies aren’t acting like they have an innocent client or friend is that they don’t. If that is so, though, the question is what the Trump insiders believe the president might be guilty of.
The first option is that these people think Trump has done something wrong involving Russia. You can even go full peeliever! There’s a lot we still don’t know about Russian interference, whether Trump aides were involved, and what Trump himself knew when. (A member of Mueller’s team offered a federal judge this explanation on Thursday, defending the indictment of Manafort as properly falling within the scope of the inquiry: “He had long-standing ties to Russia-backed politicians,” he said, according to ABC News. “Did they provide back channels to Russia? Investigators will naturally look at those things.”)
This still seems like the lowest chance of provable criminal behavior, though. It has become banal to note that collusion is not a crime per se, and while there’s a great deal of questionable content, there’s not yet direct evidence of Trump committing a specific crime. (Caveat lector: None of us knows what Mueller knows.) Any prosecution of a sitting president on a novel legal theory would face enormous hurdles. More likely is that Trump might have committed obstruction of justice by interfering with an FBI probe of Flynn, and then firing Comey.
But while some of Trump’s allies have advised him to take a bellicose stance from the start, there have been plenty of others who advised cooperation on Russia matters. White House lawyer Ty Cobb, and to a reportedly lesser extent Dowd, until the very end of his run, favored cooperating with Mueller. The theory was this: Trump was innocent of any criminal wrongdoing on the Russia case, so he should speak with the special counsel promptly, cauterize the investigation, and then make the case for Mueller to wrap up quickly.
That desire to wrap it up quickly is a relevant bridge to the other two scenarios. The raid on Cohen’s office and homes particularly infuriated the president, even though his fixer hasn’t yet been charged with any crimes. Now that Trump’s business empire and personal dealings are suddenly in view of the courts—though not, so far, being reviewed by Mueller himself, but rather by the U.S. Attorney in Manhattan—people like Goldberg and Dershowitz have begun making their unintentionally incriminating remarks. That suggests Trump’s allies view his business dealings as the most likely areas where the president might have committed a crime.
Scenario two is that Trump’s allies believe he did nothing wrong with regard to Russia but is susceptible to prosecution for his business career. Many people in business in New York bend the rules, and prosecutors mostly look the other way (the dearth of prosecutions following the financial crisis being the most prominent example), but if they want to get you they can. It’s the equivalent of pretextual stop for loitering, but for old, white, rich men. Certainly, Trump was willing to bend and even break the rules during his business career, and often ended up taking slaps on the wrist and paying fines when he was caught. That’s the cost of doing business. But—or so this theory goes—Trump didn’t realize that by running for president, and taking stands that would alienate powerful political players in New York and Washington, he was inviting them to pore over his record and go after him for his past conduct in business. In this view, prosecuting Trump is basically just a punitive measure, since even if he did anything wrong, so did his peers in the business.
It’s a flawed theory, though. No one needs Mueller to know that Trump often broke the law as a businessman. A prosecutor who wanted to prove that wouldn’t need to flip Paul Manafort or Michael Cohen, and Mueller likely obtained Trump’s tax return months ago.
Hence a third theory: Trump’s allies think he’s basically clean on Russia, but committed some serious criminal acts as a businessman or in his personal life. It would take real wrongdoing for prosecutors to be able to threaten Cohen with life in prison, as Dershowitz has it, and for Cohen’s testimony to be as damaging as the White House is telegraphing it fears it would be.
The public has no idea what Trump’s real criminal liabilities, if any, are, but the people speaking up in his defense are publicly suggesting they believe some combination of the second and third theories. This must all be maddening to Trump’s actual lawyers, who have to organize his defense. Cobb has been consistently wrong in predicting the conclusion of Mueller’s probe, and his warning that an interview with Mueller might be a “perjury trap” is peculiar, since the easy way to avoid a perjury charge is to avoid lying under oath. One thing Cobb has managed to do, however, is to consistently assert Trump’s innocence.
Few of the president’s other lawyers, past or present, have done the same.