Penn Law faculty respond to Cohen plea, Manafort conviction
On August 21, 2018, Michael Cohen, President Trump’s former personal attorney, pleaded guilty to charges of campaign finance violations and expressly implicated the president in the commission of a federal crime. The same day, President Trump’s former campaign chairman Paul Manafort was convicted on eight counts of financial fraud by a federal jury in Virginia. Penn Law’s faculty provide their analyses of these developments.
This certainly raises the question of whether a sitting president can be indicted. My guess is that the Department of Justice and [special counsel Robert S.] Mueller, III, will take the view that he cannot, which confines the significance of this news to the political, rather than the criminal, system for now. The political question is whether congressional Republicans will continue to stand by Trump. My guess is that they will, which means nothing will happen unless the Democrats gain control of the House of Representatives. The midterm elections are shaping up to be very much a referendum on what sort of behavior is acceptable in a President and whether Congress should operate as a meaningful check.
I do not know that [last week’s events] will have lasting significance for Trump & Company when all is said and done. Every day there is something new. There are too many intertwined unfolding stories for the final curtain to be at hand. I tend to focus on the daily performances of the lawyers, both the players in the drama (like Michael Cohen, Rudy Giuliani, and Michael Avenatti) and the commentators who provide analysis (like Jeffrey Toobin, Alan Dershowitz, Preet Bharara, and Chuck Rosenberg). This is presumably law in action, law as collectively experienced by citizens of a nation supposedly governed by the rule of law. I graduated from Penn Law in 1973 and studied for the bar during the Watergate Hearings. The ethics training that students were required to receive thereafter seems not to have taken. How the lawyers acquit themselves this time around may have a more devastating impact on the profession.
It’s essential to keep in mind first principles of American government. Public service is a responsibility, not a privilege. In America’s constitutional democracy, the nation’s highest public servants stand accountable both through regular, free, and fair elections and through the rule of law.
Individuals who hold the office of the President of the United States assume the greatest responsibility to honor and respect the law and the integrity of the electoral process. The President is the only public official selected through a nationwide election, and Article Two of the Constitution expressly obligates the President to “take care that the laws be faithfully executed.” Criminal conduct engaged in by, or directed or countenanced by, anyone holding or even seeking to hold the office of the President constitutes a fundamental breach of public trust.
Criminal conduct aimed at influencing an election strikes the most profound blow of all, as it offends the nation’s sacred principles of both legal and electoral accountability. That’s why President Richard Nixon’s involvement in the Watergate cover-up necessitated his resignation. With an explicit obligation to “take care” that laws are faithfully followed, Presidents must denounce illegality and cooperate with law enforcement—not praise individuals convicted of felonies. And when their own actions are drawn into serious question, Presidents must provide a full accounting to the American public. They should not blame others, make excuses, stir up division, or seek to undermine the legitimacy of the legal system.
In the wake of the Iran-Contra scandal, President Ronald Reagan rightly said to the American public, “I assume full responsibility.” Or, as the sign on President Harry S. Truman’s Oval Office desk put it, “The buck stops here.”