Stormy Clouds

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Anyone who has been following US domestic politics over the past 12 months will be aware of the fascinating legal storm clouds brewing over the Leader of the Free World, one Mr Donald J Trump.

Since May 2017 the stoic and uncompromising former Director of the Federal Bureau of Investigation, Mr Robert Mueller, has led a wide-ranging and largely tight-lipped investigation into Russia’s involvement in the 2017 Federal elections, including allegations of collusion with the Trump campaign. And while President Trump, through his regular tweets, assures us it’s no more than a political witch hunt, the smoke has already led Mueller to plenty of fire, with several of Trump’s senior campaign members having pleaded guilty to felony charges, and indictments being presented against 13 Russian citizens. At this stage, it’s less of a question of whether there is fire, and more a question of who will get burnt. The end game of the investigation appears to be whether any of this will lead back to the President personally, and if so what ramifications might follow. Mueller appears resolute as he continues to slowly pick off various members of Trump’s inner circle, securing plea bargain after plea bargain, in pursuit of the end game. At this stage, it remains to be seen whether he’ll get his man.

But as the investigation reaches its inevitable denouement, the narrative has begun to unravel in a way that even the esteemed fiction writer John Grisham would be royally proud of. It started with a surprising twist in January this year, when The Wall Street Journal reported that Donald Trump’s longtime personal lawyer, Michael Cohen, paid a former porn star, Stormy Daniels, $130,000 in hush money back in October 2016, shortly before the presidential election, to deny she had an affair with Trump in 2006.

Cohen denied the existence of an affair on behalf of his client, but later acknowledged having paid Daniels $130,000 out of his own money, a payment which he claims Trump was not aware of. This in turn caught the attention of the FBI. If Trump was involved in the payment, he would likely be guilty of serious breaches of Federal Election Laws. Sure enough, on 9 April the FBI raided the offices of Mr Cohen, seizing documents relating to his dealings with Trump. Now the FBI is reportedly investigating Mr Cohen for possible fraud, campaign financing violations, and perhaps even money laundering. And whilst the raid raises interesting questions of legal professional privilege which still need to be determined, it has created a veritable litigious minefield that spells serious trouble for Trump.

If there is one man that knows what skeletons may lurk in the President’s closet, it’s his long-time attorney. Many believe Mueller will now turn the screws on Cohen, hoping to turn him state’s witness. And the predictions are that, while so far the lawyer continues to pledge steadfast loyalty to Trump, if he finds himself facing a stiff “10 to 15,” he may just decide to sing like the proverbial canary.

At the same time, in the civil lawsuit on foot between Trump, Cohen and Ms Daniels, Cohen claims he will decline to answer questions at the trial on the basis the answers might tend to incriminate him, and has sought to stay the action, at least temporarily, on that basis. If, however, the court refuses his stay application, and the President himself is called as a witness at the trial, there’s a good chance we could also see the Leader of the Free World ‘plead the Fifth’. Quite astonishing.

Things will get even more interesting if and when President Trump is required to answer under oath questions posed by Federal investigators. It won’t have escaped his lawyers that, while The Donald is always entertaining, at times he has trouble negotiating the facts. The witness box is certainly no place for a loose cannon rolling around the decks.

No doubt it will all make a fascinating movie one day. But the end of this script is yet to be written. Serious criminal charges, including campaign bribery, perjury and money laundering, are potentially looming for someone. Knowing Hollywood, and Washington, don’t be surprised if there’s a shock revelation in the third act.

Brendan Nyst

Director, Dispute Resolution and Litigation Lawyer

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