House Oversight Chairman Elijah Cummings noted that he wrote directly to the SDNY prosecutors because of concerns about the accuracy of information provided to Congress by Attorney General William Barr in characterizing Robert Mueller's findings. | Susan Walsh/AP Photo congress Dems ask whether DOJ memo prevented prosecuting Trump for hush payments

House Democrats want to know whether a decades-old Justice Department prohibition on indicting a sitting president played a role in federal prosecutors’ decision not to criminally charge President Donald Trump over hush money payments that he directed his fixer to pay to women.

The prohibition, laid out in a 2000 memo by the Justice Department Office of Legal Counsel, was also a key factor in former special counsel Robert Mueller’s decision to refrain from considering whether to charge Trump with obstruction of justice for his repeated attempts to thwart the investigation of Russian interference in the 2016 election.


Now Democrats on the House Oversight Committee say the federal prosecutors based in the Southern District of New York should disclose whether they made a similar analysis. The president’s longtime lawyer and fixer Michael Cohen was jailed earlier this year, in part for his role in hush payments to women accusing Trump of extramarital affairs, and he implicated the president in the scheme. Documents made public Thursday showed contacts between Cohen and Trump surrounding the hush money payments and were part of prosecutors’ evidence that Trump directed Cohen to make the payoffs.

“If prosecutors identified evidence of criminal conduct by Donald Trump while serving as President — and did not bring charges as they would have for any other individual — this would be the second time the President has not been held accountable for his actions due to his position,” committee chairman Elijah Cummings wrote in a 12-page letter to the deputy U.S. attorney in the Southern District of New York. “The Office of the President should not be used as a shield for criminal conduct.”

Cummings noted that he wrote directly to the SDNY prosecutors because of concerns about the accuracy of information provided to Congress by Attorney General William Barr in characterizing Mueller’s findings in March — a month before it became public.

Cummings has asked for SNDY to provide by Aug. 2 “all evidence collected about the role of any other individual in connection with the campaign finance charges against Cohen, including any evidence relating to the President, and copies of all immunity deals granted, or informal immunity agreement letters or non-prosecution agreements entered into, in this investigation.” The committee is also asking whether Barr or any other senior Justice Department officials weighed in on the case.

Cohen pleaded guilty in 2018 to two campaign finance violations for arranging payments to two women who were preparing to accuse Trump of extramarital affairs in the weeks leading up to the 2016 election. One of them, porn actress Stormy Daniels, received $130,000 through a shell company that Cohen opened. The other, Karen McDougal, received a $150,000 “catch-and-kill” contract from Trump associates at the National Enquirer to bury her story just before the election. Cohen, who is currently serving a three-year prison sentence, admitted he played a role in that arrangement, as well.

Republicans on the Oversight Committee quickly rejected Cummings’ inquiry as a political attack on Trump and argued that Cohen’s history of lying undercuts the Democrats’ inquiry.

“Everyone knows that convicted felon Michael Cohen is a habitual liar. But still Chairman Cummings continues to use Cohen — the Chairman’s first announced witness this Congress — to attack the President for political gain,” said a spokesperson for Oversight Committee Republicans. “Democrats in Congress should be solving real problems instead of indulging their obsession with impeaching the President.”

