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Opinion | Erwin Chemerinsky

Did Mueller implicate Trump in criminal activities?

President Trump.
President Trump.(Mark Wilson/Getty Images)

The filings on Friday by special counsel Robert Mueller make ever clearer that President Trump was likely engaged in criminal activity. The crucial question will be how this is handled in a country that prides itself on the principle that no one, not even the president, is above the law.

Michael Cohen, Trump’s former lawyer, pleaded guilty to eight federal crimes. Some of these crimes include paying women to remain silent about their sexual relationships with Trump. This was done in a way that violated federal campaign finance laws and federal tax laws. It is hard to believe that this was done without Trump’s approval because it was spending a good deal of his money.

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Cohen also revealed that talks about the proposed Trump Tower project in Moscow had extended through June 2016, after Trump had secured the Republican nominee for president, and that both Trump and his family members had been briefed on these negotiations. This revelation contradicts earlier statements and may implicate Jared Kushner, Trump’s son-in-law, and Donald Trump Jr., the president’s son. Cohen pleaded guilty to lying about Congress about this.

The court filing on Friday said that Cohen spoke with a Russian in November 2015 , who offered the Trump campaign “political synergy” and “synergy on a government level” that could help Trump’s persistent efforts to build a luxury hotel and condominium tower in Moscow.

It also is part of a strengthening web of evidence linking Trump and those closest to him to the Russian government, which US intelligence agencies have concluded was attempting to influence the outcome of the 2016 presidential election. Dan Coats, a former Republican senator and Trump’s pick to be director of national intelligence, declared: “We have been clear in our assessments of Russian meddling in the 2016 election and their ongoing, pervasive efforts to undermine our democracy, and we will continue to provide unvarnished and objective intelligence in support of our national security.”

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On Friday, Mueller filed a document in federal court stating that former Trump campaign chairman Paul Manafort lied on five major issues after agreeing to cooperate with prosecutors, including his “contact with administration officials.” For example, the document said that Manafort lied about his interactions with Konstantin Kilimnik, who Mueller has said has ties to the Russian military intelligence unit accused of hacking the Democrats. Manafort had been convicted in August of financial fraud and tax evasion. He pleaded guilty to other charges, but Mueller’s office sought to rescind the plea agreement based on Manfort’s lies.

All of this shows an investigation that ever more clearly is implicating the president and close members of his family. The fear is that Trump will respond to this by firing Mueller and ordering an end to the investigation.

This makes it essential that Mueller be allowed to finish his investigation without removal or interference. A couple of bipartisan bills have been introduced into Congress to accomplish this. Republican Senator Thom Tillis of North Carolina and Democratic Senator Chris Coons of Delaware have introduced a bill that would require that the firing of Mueller be for good cause and approved by a panel of federal judges. A similar bill has been introduced by Senators Lindsey Graham, a Republican from South Carolina, and Cory Booker, a Democrat from New Jersey.

There is no doubt that such a law would be constitutional. In Morrison v. Olson, in 1988, the Supreme Court in a 7-to-1 decision, upheld the constitutionality of a federal law that provided for the appointment of an independent counsel and allowed removal only for “good cause” by a panel of three federal judges. The court stressed the importance of the independence of the person responsible for investigating alleged wrong-doing by the president or high level executive officials.

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At the same time, the issue that may need to be faced soon is whether a sitting president can be indicted. There is no definitive answer to this question. An internal Justice Department memo says it is not possible, but no court ever has addressed it. Also, as evidence mounts of Trump’s own criminal culpability, the House of Representatives will need to consider whether to initiate impeachment proceedings.

This should not be a matter of partisan politics. It is about whether the president of the United States is above the law. In a nation that believes in the rule of law, there is only one possible answer to that question.


Erwin Chemerinsky is dean and professor of law at Berkeley School of Law.