Team Trump trots out three last-ditch defenses against Cohen's charges: They're all a joke Donald Trump and his defenders are having a hard time explaining hush money scandal after Michael Cohen's guilty plea. Is impeachment next?

Harry Litman | Opinion contributor

Caught flatfooted by Michael Cohen’s sudden guilty plea to crimes he swore he committed at the direction of President Trump, the president and his defenders have trotted out three lines of defense in the last 24 hours. All of them are wrong, and one of them is outrageous.

The first is to actually deny that the president has been implicated in criminal conduct at all. Thus Rudy Giuliani reportedly asserted Tuesday that the charges to which Cohen pleaded include no allegation “of any wrongdoing” by the president. And Trump himself, bafflingly, tweeted out that Cohen pleaded guilty to “two counts of campaign finance violations that are not a crime.”

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This first line of defense is nothing short of silly. Cohen swore in open court that the president — identified in the charging document as “Individual -1” not only joined but directed his criminal activity. (And the president’s suggestion that the two counts of the document that involve him are not crimes is incoherent.)

Second, Giuliani, in his familiar attack-dog posture, asserted that Cohen’s sworn allegations were themselves lies, and that Cohen had engaged in “a pattern of lies and dishonesty over a significant period of time.”

This of course is the standard refrain of defendants when former co-conspirators cooperate with the government. And certainly Cohen comes to the government with a long trail of lies, many made in his loyal service to the president.

But the attacks flounder for several reasons. First, and most importantly, Cohen brings to the government a wealth of corroborating evidence that strongly reinforces his account of the president’s involvement, including the taped conversation between Cohen and the president that establishes the president’s knowing involvement in the payout scheme. Cohen’s conduct, moreover, according to the charging document, was “coordinated with one or more members of the campaign.” And other important witnesses are likely to support Cohen’s account, such as David Pecker, CEO of American Media which publishes the National Enquirer, who has been cooperating with the government, not to mention Stormy Daniels and Karen McDougal themselves.

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Cohen’s taped conversation put the lie to Trump’s previous and repeated denials of any knowledge of the hush agreements. Indeed, as impeachable as Cohen may be, the president himself starts any credibility battle with Cohen in the hole because of his own trail of lies. These began four days before the election when his spokeswoman Hope Hicks categorically asserted that “we” — the campaign — “have no knowledge” of the McDougal affair or coverup. Those false denials were repeated, including by the president himself when he denied knowing about any payment to Stormy Daniels.

So we have the sworn statements in court against self-interest by Cohen, with extensive corroboration, as against the self-interested, unsworn, uncorroborated, and, based on his track record of promiscuous lies, untrustworthy avowals of the president. Add to that Trump’s elaborate gymnastics to avoid answering any questions under oath. It is hard to see how he can prevail in a credibility battle even with Cohen.

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Team Trump’s third defense is to suggest that even if Trump directed the criminal activity, it was a trivial, barely criminal violation. Giuliani has hinted at this argument but probably its strongest articulation was by Professor Alan Dershowitz in the latest of defenses of the president on Fox News. Dershowitz compared the crimes to a “kind of jaywalking in the realm of things about elections," and the sort of trifling conduct that “every candidate” violates.

This final claim is not only wrongheaded but pernicious. It attempts to analogize Cohen’s crimes, and Trump’s direction of them, to a technical oversight, a mere failure to file reports. The account completely distorts and understates the elaborate conspiracy that Cohen detailed and that was undertaken at Trump’s direction expressly for the purpose of influencing the election. McDougal and Daniels needed to be paid and silenced — and the silence covered up — in order to prevent the political fallout to a candidate who had barely weathered the disclosure of the Access Hollywood tape. The campaign-finance aspect of the crimes are a near-incidental detail in the context of the scheme’s purpose — a payment of hush money to influence an election. It is far more akin to the payment of bribes, or practice of dirty tricks as in Watergate, to secure an improper campaign advantage.

This then, far from a regulatory violation, represents the sort of grave corrupt conduct that threatens democratic institutions and casts a shadow on the legitimacy of the election. Impeachment was designed in part as a response to just this sort of attempt to exploit and corrupt the system in order to gain political office. As George Mason put it at the Constitutional Convention, “Shall the man who has practiced corruption, and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?” That is a question that the Congress — and especially the Republican members of Congress, whose unprincipled toadying to the president appears to date to have no limit — may soon need to answer.

Harry Litman, a former U.S. attorney and deputy assistant attorney general, teaches the Supreme Court as a Political Institution at UCLA Law School. He clerked for Justice Anthony M. Kennedy during the 1988-89 Supreme Court term and worked on Supreme Court and other judicial nominations at the Justice Department. Follow him on Twitter: @harrylitman