Cohen and Manafort pose new problems for President Trump

“Was you ever bit by a dead bee?” A drunken sailor asks that curious question of actress Lauren Bacall in the 1944 classic movie, “To Have and Have Not.” This week, President Trump can claim two legal stings from dead bees, in the familiar forms of Michael Cohen and Paul Manafort. Indeed, the two late Friday court filings by special counsel Robert Mueller and one by the United States Attorney for the Southern District of New York are very detailed accounts of how to get stung by dead bees.

First and foremost, you have to step on them. With both Cohen and Manafort, the Trump legal team could face serious complications after actively seeking out close and ongoing relationships when it should have been cutting both men a wide berth. That does not mean these filings will send the president into legal anaphylactic shock. Yet, once again, the greatest threats facing Trump may be due to missteps in response to the special counsel investigation, as opposed to the original allegations.

Soon after the release of the filings, Trump posted a tweet declaring, “Totally clears the president. Thank you!” There were very few others who shared his enthusiasm, however, since the accusations directed against Trump, who is referred to as “Individual 1” in the filings, are about as vindicating as an indictment would be liberating. Nevertheless, there are three positive elements for the president in this latest development.

{mosads}First, while prosecutors reveal additional alleged Russian contacts, and even an offer to create some “campaign political synergy,” there is a conspicuous absence of evidence of an alleged conspiracy or collusion by the campaign. As in the case of the Trump Tower meeting between Russian representatives and Trump campaign officials, these limited queries and contacts seemed to go nowhere. Indeed, Cohen apparently did not even follow up on an offer to meet with one Russian official promising political help. Second, the vast majority of false statements and criminal allegations concern the ample criminal conduct of Cohen and Manafort, all of which are unrelated to Trump or the 2016 campaign.

Third, and most importantly, prosecutors are seeking significant prison sentences for both Cohen and Manafort because both men failed to cooperate to the extent that prosecutors demanded. Since they each spoke extensively with prosecutors, they clearly were unwilling or unable to give Mueller what he demanded in exchange for sentencing reductions. After a long series of filings, the special counsel has given detailed accounts of plenty of suspicious characters, but he still shows no clear collusion between the Trump campaign and the Russian government.

That brings us to the unappreciated danger of dead bees. Many observers long warned that Cohen and Manafort represented serious unnecessary risks. All that was needed was to back away from them. Instead, Trump and his advisers stepped on both. Cohen has been a dead bee since the nondisclosure agreement with porn star Stormy Daniels was disclosed. Trump, however, ignored advice to sever connections and instead reaffirmed that Cohen remained his personal lawyer. Cohen then turned on his former boss, deciding to cooperate without a formal agreement with prosecutors. It did not turn out as he hoped. New York prosecutors virtually mocked his “sympathetic family history” and belated cooperation in search of leniency. They rejected notions that Cohen is a “hero” and said he made the “affirmative decision” not to be a cooperative witness.

Most of the new information in the filings concerns the multiple criminal acts that Cohen committed in defrauding banks, evading taxes, and lying to an array of people on an array of subjects. However, one allegation is a direct sting to Trump. Prosecutors state that Cohen committed criminal campaign finance violations “by orchestrating secret and illegal payments to silence two women” and assist the Trump campaign. The filings describe how the payments “sought to influence the election from the shadows” as decent Americans “knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard.”

That could be dismissed as purple prose, but the Justice Department expressly declares this crime against democracy was carried out “in coordination with and at the direction of” Trump. This stands as a clear accusation in a federal document of a crime committed at his ordering. Last year, I wrote that the payments to these women could be charged but would be difficult to prove. The real sting, however, is what follows. Prosecutors describe Cohen dealing with the White House before he lied to Congress and the public. He also allegedly made false statements to investigators. In continuing to coordinate and communicate with Cohen, the White House implicated itself in his long pattern of deception.

{mossecondads}This creates the risk of an alternative theory of obstruction of justice. While the allegations surrounding the firing of former FBI director James Comey have always been anemic, this would be an effort to undermine an active federal investigation through alleged acts of subornation and witness tampering, an effort to conceal this crime that could prove the more serious offense. In other words, by pulling Cohen deeper into the fold, the Trump legal team stepped on a dead bee.

Manafort was dead as John Dillinger the minute he was indicted. He was a one man criminal conglomerate who was neither clever nor careful. Much like Cohen, blind greed left him little in terms of a viable defense. All the White House had to do was step around him. Instead, the Trump legal team reportedly continued to meet with counsel for Manafort under a joint defense agreement. As a cooperating witness facing sentencing, it was highly unusual and problematic to share information with the Trump legal team on what the special counsel revealed in confidential meetings.

The filings, however, go further and state that earlier this year, Manafort communicated directly and indirectly with Trump administration officials, including a “senior” official. If Mueller believes Manafort was coordinating his withholding of information or lack of cooperation, then it could be construed as the same range of collateral crimes from obstruction, to subornation to witness tampering, suggested by the Cohen filings.

Moreover, since there is a crime fraud exception to attorney client privilege, this allegation could lead to losing confidentiality over these meetings and force lawyers for Trump to take the stand to answer the allegations. It gives Mueller a line of attack that he did not have based on the original allegations. This is exactly how you can be stung by dead bees. Or as the drunken sailor explained to Lauren Bacall in the movie, “You know, you got to be careful of dead bees if you are going around barefooted, cause if you step on them they can sting you just as bad as if they was alive, especially if they was kind of mad when they got killed.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.