Renato Mariotti is a former federal prosecutor.

Michael Cohen got three years in prison Wednesday for his role in what the judge called “a smorgasbord” of crimes, including hush money payments that violated campaign finance rules. But the most consequential development from the hearing had to do with a person who was not even in the courtroom: Donald Trump.

In sentencing the president’s former fixer, federal judge William H. Pauley III said in open court that Trump had directed his then-lawyer to commit a federal felony. This was in some respects a formality, a confirmation of a conclusion that prosecutors and the United States Probation Office had reached last week. But while it might have been a formality, it was important. No one in that courtroom, including the judge, disagreed that Trump directed Cohen to commit crimes.


Trump has downplayed his role, calling the payments a “simple private transaction” and, “only a CIVIL CASE” that would result in liability for Cohen and not him. But he and his Republican supporters do not appreciate what legal analysts do: that the president is in serious legal jeopardy and it is mounting.

No competent lawyer would tell a client who was publicly implicated in a crime by federal prosecutors that the client was not at very serious risk of being indicted. Even Republicans like frequent Trump defender Andrew McCarthy concluded that Trump is likely to be indicted.

I am less convinced that we can be confident a direct indictment of Trump is coming. The conclusion reached by Judge Pauley, federal prosecutors and U.S. Probation was based on a “preponderance of the evidence” standard, meaning that they concluded it is more likely than not that Trump directed Cohen to commit a crime. That is well below the “beyond a reasonable doubt” standard in a criminal trial.

Nevertheless, news reports make clear that their investigation of the crimes Cohen was convicted of are not over. That means others in the Trump Organization are still vulnerable to indictment and therefore it is entirely possible Trump himself would be formally named as an unindicted co-conspirator. (Numerous Trump critics have used the Cohen sentencing memo to contend that Trump already is one, but an unindicted co-conspirator can be named only in a charging document.) So let’s look at why that might happen for real.

When federal prosecutors told Judge Pauley that “[i]n particular, and as Cohen himself now admitted, with respect to both payments, he acted in coordination with and at the direction of [Trump],” they were in effect representing to the judge that their evidence supported that conclusion. There is no question in my mind that the federal prosecutors, particularly their accomplished leader, Robert Khuzami, would have hedged their language if the conclusion were a close call.

The language they used strongly implies that they possess evidence beyond Cohen’s say-so. They wrote that “in particular, and as Cohen himself now admitted,” suggesting they had evidence pointing to Trump’s involvement before Cohen confirmed it. If they relied solely on Cohen, they would have made clear that Cohen asserted Trump’s involvement and they had no evidence to corroborate him.

Instead, they cited the pre-sentence report prepared by U.S. Probation after a thorough investigation by a probation officer, indicating that in its report Probation concluded Trump directed Cohen. Judge Pauley adopted the findings of that report today.

There can be no serious question that the evidence relied upon by federal prosecutors, the Probation Office and Judge Pauley will be used by federal prosecutors as they continue their investigation. They are investigating the Trump Organization and have granted immunity to cooperator Allen Weisselberg, the chief financial officer of the Trump Organization, as well as David Pecker, who runs the company that owns the National Enquirer and was fingered in the charges against Cohen. That indicates prosecutors are pursuing additional charges.

The ultimate target of the New York federal criminal investigation may be the Trump Organization official dubbed “Executive-2” in the charges against Cohen. In paragraph 38 of the Cohen charges, Executive-1 (reportedly Weisselberg) sought approval for payments to Cohen from Executive-2, and then told another employee to “pay from the Trust.”

Who would the chief financial officer need approval from? If it was for a payment from Trump’s own trust, Executive-2 could be Donald Trump Jr. (Trustee) or Eric Trump (Chairman of the trust’s advisory board). Because the payments described in the charges against Cohen involved false statements in the books and records of the Trump Organization, other crimes—including state crimes—could be implicated, and Cohen’s attorney told Judge Pauley that Cohen is cooperating with the New York Attorney General.

An indictment of Executive-2 could potentially include Trump as an “unindicted co-conspirator,” an allegation that the recent conclusion of federal prosecutors strongly suggested could be made. Unindicted co-conspirators, as a matter of Department of Justice policy, will not be named but even with the use of generic titles such as “Individual-1,” the person’s true identity could be obvious. An allegation in an indictment that Trump conspired with Executive-2, Cohen and others to commit a crime could have a significant political impact, as it did when President Richard Nixon was alleged to be an unindicted co-conspirator in 1974. An indictment of Trump could cause Congress to remove him from office prior to the 2020 election, but that isn’t in the offing, given longstanding Justice Department guidance that a sitting president cannot be indicted.

That doesn’t mean an indictment will never come, however. The statute of limitations for the campaign finance crime at issue would not run until late 2021, after Trump would leave office if he is defeated in 2020. And former Acting Solicitor General Neal Katyal claims (initially during our conversation on my “On Topic” podcast) that the statute of limitations would be automatically stayed (i.e., frozen) if Trump were reelected.

That does not mean that prosecutors will necessarily develop sufficient evidence to prove Trump’s guilt beyond a reasonable doubt. Trump almost certainly does not have a formal “advice of counsel” defense, and it does not appear that Cohen was acting as a lawyer. But the fact that Cohen was a lawyer would make it harder to prove that Trump had the state of mind required to convict him because Trump presumed that Cohen, as a lawyer, would not get involved in illegal activity.

In the meantime, however, you can expect this federal investigation to continue and for Trump’s legal jeopardy to continue to grow. And that may well change his political jeopardy. For now Republican lawmakers are defending the president—Rep. Tom Reed (R-Ill.) said he was “disagreeing” with the fact that Trump is implicated, while Senator Orrin Hatch bluntly admitted, “I don’t care.” One wonders how their stances might change if Trump, like President Nixon before him, were to be named an unindicted co-conspirator.

