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WASHINGTON — Prosecutors unveiled astonishing details this week about President Trump’s conversations with his former attorney and fixer, Michael Cohen, in the moments when Cohen was committing felonies on behalf of his boss.
The minute-by-minute phone records between Trump, his campaign, and Cohen paint the most damning and detailed picture yet of Trump’s role in illegal hush-money schemes to quiet any new sex scandals during the 2016 campaign — a plot prosecutors have already said Trump personally directed.
Yet despite the mountain of evidence, Trump will not be charged, prosecutors indicated, saying the case is now “effectively concluded.” For that, Trump can again thank a once-obscure government legal document that has played an outsized role in his presidency: The “OLC memo” — which forbids the indictment of a sitting president.
“It is hard to imagine any other rationale for dropping this case other than the OLC opinion against indicting and prosecuting a sitting President.”
The OLC memo appears to be the biggest, if not only, reason that Trump won’t be charged anytime soon for his role in the hush-money payments, former prosecutors and legal observers told VICE News.
“It is hard to imagine any other rationale for dropping this case other than the OLC opinion against indicting and prosecuting a sitting President,” said Joseph Moreno, a former prosecutor based in New York.
That same memo saved Trump from being charged by Special Prosecutor Robert Mueller, whose investigation uncovered evidence of obstruction of justice that more than 1,000 former federal prosecutors argue would have easily been enough to indict anyone other than the President of the United States
But the OLC opinion has become a sort of get-out-jail-free card for Trump that’s valid for as long as he is president. And given the five-year statute of limitations on the illegal campaign finance crimes involved, if Trump wins reelection in 2020, his temporary pass could easily become permanent.
The gritty details
Documents released Thursday showed how communications between Trump and Cohen kicked into high gear a month before the 2016 election, just as Cohen was scrambling to keep stories about Trump having sex with adult film star Stormy Daniels and Playboy model Karen McDougal from going public.
The effort reached a fever pitch just hours after a bombshell rocked Trump’s campaign in early October: The Access Hollywood recording of Trump profanely boasting about groping women.
The next day, Cohen was on the phone with Trump and Hope Hicks, Trump’s spokeswoman. Immediately afterwards, Cohen rang up David Pecker — the media mogul and Trump supporter whose National Enquirer tabloid paid $150,000 to McDougal to effectively silence her story about having an affair with Trump.
Trump and Cohen had spoken by phone only five times in the preceding five months. But they had at least five calls over the next few weeks, including the day after Cohen wired $130,000 to adult film star Stormy Daniels, who claims to have slept with Trump.
Cohen has also produced an audio recording of himself talking to Trump about the hush-money scheme, and a check signed by Trump that Cohen says was meant as reimbursement.
The OLC Obstacle
The evidence against Trump is hard to ignore, but some legal experts caution that prosecutors may have hesitated because they lacked sufficient proof that Trump knowingly broke campaign finance law.
“SDNY may have lacked evidence of willfulness,” said Barbara McQuade, the former U.S. Attorney for Detroit, though noting that could theoretically have been overcome by hauling Trump in for an interview.
Harry Sandick, a former prosecutor for the Southern District of New York, said there very well may have been a variety of reasons Trump was not indicted, but added, “the OLC opinion is foremost.”
For Democrats in charge of investigating Trump, that is cause for outrage.
“The inescapable conclusion from all of the public materials available now is that there was ample evidence to charge Donald Trump with the same criminal election law violations for which Michael Cohen pled guilty and is now serving time in prison,” said Adam Schiff, the Democratic leader of the House Intelligence Committee.
“The inescapable conclusion from all of the public materials available now is that there was ample evidence to charge Donald Trump”
Cohen is now serving a three-year prison sentence in Otisville, New York, after pleading guilty to campaign finance violations connected with the payoffs, along with other financial crimes and lying to Congress.
The documents “demonstrate that Donald Trump was intimately involved in devising and executing a corrupt scheme to prevent his affair with Stormy Daniels from being revealed in the final weeks of the 2016 election,” Schiff added.
Democrats plan to give the OLC memo a starring role in next week’s Congressional testimony from special counsel Mueller. They intend to hammer home the evidence of obstruction of justice in Mueller’s 448-page report, and point out how the policy appears to be all that’s standing in the way of indicting Trump for obstruction.
But Democrats have little recourse to challenge the OLC memo, besides impeachment — a step they’ve so far been unwilling to take.
Cover: This combination of file photo shows, from left, President Donald Trump, attorney Michael Cohen and adult film actress Stormy Daniels. Search warrants unsealed Thursday, July 18, 2019, shed new light on the president's role as his campaign scrambled to respond to media inquiries about hush money paid to two women who said they had affairs with him. (AP Photo/File)