Even as speculation mounts that special counsel Robert Mueller might be winding down his investigation, a parallel threat to President Donald Trump only seems to be growing within his own Justice Department: the Southern District of New York.
Manhattan-based federal prosecutors can challenge Trump in ways Mueller can’t. They have jurisdiction over the president’s political operation and businesses — subjects that aren’t protected by executive privilege, a tool Trump is considering invoking to block portions of Mueller’s report. From a PR perspective, Trump has been unable to run the same playbook on SDNY that he’s used to erode conservatives’ faith in Mueller, the former George W. Bush-appointed FBI director. Legal circles are also buzzing over whether SDNY might buck DOJ guidance and seek to indict a sitting president.
The threat was highlighted when SDNY prosecutors ordered officials from Trump’s inaugural committee to hand over donor and financial records. It was the latest aggressive move from an office that has launched investigations into the president’s company, former lawyer and campaign finance practices. New York prosecutors have even implicated Trump in a crime.
Add it all up and the result is a spate of hard-to-stymie, legally perilous probes that appears on track to drag on well into Trump’s 2020 reelection campaign. SDNY stands poised to carry on Mueller’s efforts whenever the special counsel’s office closes shop, and it’s likely to draw even more attention if freshly confirmed Attorney General William Barr — who now oversees the Russia probe as DOJ head — clamps down on the public release of Mueller’s findings.
“When you combine their experience with the traditional independence of the southern district and the reputation it has, this is like another Mueller investigation going on,” said Nick Akerman, a former SDNY assistant attorney who also worked on the Watergate prosecution team.
Mueller can take credit for spawning significant parts of SDNY’s work. The two DOJ units have shared staff, witnesses and leads, and SDNY has been well-positioned to pick up anything that is outside Mueller’s primary lane of investigating collusion between the Trump campaign and Russia.
A Mueller referral to SDNY, for example, triggered an FBI raid on Michael Cohen’s office and hotel room, according to Cohen’s former lawyer. And the fruits of that raid culminated late last year in Cohen’s guilty plea, in which the longtime Trump fixer and former personal attorney admitted in federal court that Trump directed him to make hush money payments to sway the 2016 presidential election.
The New York federal prosecutors are far from finished. They’re still seeking interviews with Trump Organization executives, according to a source with knowledge of the probe. And Trump’s inaugural committee confirmed earlier this month that it had received a wide-ranging subpoena from SDNY for documents as part of a probe into how the group raised and doled out a record $107 million. Investigators are looking at everything from potential mail and wire fraud to illegal foreign contributions and money laundering.
“This is why I’ve been saying for months that the Southern District of New York investigation presents a much more serious threat to the administration, potentially, than what Bob Mueller is doing,” Chris Christie, a former New Jersey governor and former federal prosecutor, told ABC News earlier this month.
Elaborating on MSNBC, Christie said that SDNY, unlike Mueller, has “no restrictions on their purview.”
“Bob Mueller has a task: It’s Russian interference and potential collusion in the 2016 election,” he said. “Southern District of New York is whatever the heck you want.”
SDNY poses an potent threat because the office has accumulated a perfect storm of witnesses who have guided Trump throughout his career, from his businesses to his meteoric rise in presidential politics up through his inauguration to the White House.
The list of cooperators includes Allen Weisselberg, the Trump Organization’s longtime chief financial officer; David Pecker, the CEO of the National Enquirer’s parent company who has admitted to working with Trump for years to kill incriminating media stories; and Rick Gates, who served as Trump campaign deputy and then de facto leader of the inaugural committee. Gates pleaded guilty in the Mueller probe to lying to the FBI last February but his sentencing has been delayed while he cooperates in “several ongoing investigations,” according to a filing last month from the special counsel’s office.
Then there’s Cohen, Trump’s longtime fixer who is scheduled to begin serving a three-year prison sentence next month. Christie called Cohen a “tour guide” for SDNY investigators into the president’s orbit.
Another concern for Trump: SDNY’s independence. Its nickname is the “Sovereign District of New York,” and former prosecutors who have worked there describe its authorities and experience as unique among the nation’s 93 U.S. attorney offices.
Trump-appointed officials are also not directly overseeing SDNY’s Trump-related investigations. The president’s hand-selected SDNY head, U.S. Attorney Geoffrey Berman, has recused himself from the probes, deferring to a pair of longtime federal prosecutors: Robert Khuzami and Audrey Strauss.
An SDNY spokesman declined to comment for this story.
Alumni from the office have said SDNY’s investigative powers and independent streak are so robust that — depending on what it finds on Trump — the office could skirt DOJ legal protocol dating to Watergate that holds a sitting president can’t be indicted.
“I’m thoroughly convinced the SDNY will make its own evaluation. They will not say that’s a department policy,” said Jon Sale, a former SDNY and Watergate prosecutor who is close with Trump personal lawyer Rudy Giuliani. “They’re obviously looking at the president and I wouldn’t rule out that they could decide you can indict a sitting president.”
Trump’s attack-Mueller playbook can’t be replicated in New York. For starters, the bounds of what SDNY is looking at don’t deal with Trump’s tenure in the White House, meaning any push back on executive privilege grounds won’t fly. Trump’s lawyers have said they’ve resisted Mueller’s attempts to get the president to answer questions about potential obstruction of justice matters dealing with his time in the Oval Office. And they continue to signal the president’s team should be allowed to review the special counsel’s finished report to ensure it doesn’t violate the president’s rights.
Trump is limited in his abilities to use his bully pulpit against SDNY — which has nowhere near the name recognition of the special counsel — in the way he has used Twitter, rallies and even the State of the Union to lambaste Mueller.
That’s not to say the president isn’t concerned about SDNY. Trump reportedly complained about SDNY’s pursuit of Cohen to Matthew Whitaker, his former acting attorney general, though Whitaker last week denied to Congress that the president had chided him.
Giuliani has confirmed Trump’s frustrations with SDNY’s handling of the Cohen probe.
“The president and his lawyers are upset about the professional prosecutors in the Southern District of New York going after a noncrime and the innuendo the president was involved,” Giuliani, who served as the U.S. attorney leading SDNY for more than five years during the Reagan administration, told CNN in December.
But in an interview with POLITICO on Friday, Giuliani downplayed any broader concerns that his former office posed a wider threat to the president.
“The same thing will happen as has happened over the last two years with all of these things. They’ll run them down and they’ll find out the president didn’t do anything wrong. Not a darn thing,” Giuliani said.
Trump’s complaints about the Mueller probe — railing against his team of “angry Democrats” and even going after the special counsel himself in more than 70 mentions on Twitter since last March — have helped the president turn his political base against the Russia investigation. A voters, a record low 13 percent of registered Republican voters reported having a favorable view of Mueller in a recent POLITICO/Morning Consult poll. While that can help the president maintain GOP support in an impeachment battle, legal experts and Trump’s allies have said similar attacks on SDNY won’t matter much should the battleground become a court of law and not the halls of Congress.
“That’s one you can’t win,” said Andrew McCarthy, a former SDNY prosecutor and National Review columnist whom the president has cited on Twitter while blasting the Mueller probe. “There’s no upside for Trump in attacking the southern district, whereas there might be in attacking Mueller.”
What’s more, SDNY’s efforts have found allies in Democratic lawmakers who have made the U.S. attorney’s office a key feature of their hearings, floor speeches and in written demands of Trump’s Justice Department.
Ahead of Whitaker’s recent appearance before Congress, House Judiciary Chairman Jerry Nadler told the acting DOJ head that SDNY’s work would be one of his primary lines of questioning. And in a follow-up letter after the hearing, the New York Democrat pressed Whitaker over his denials that Trump lashed out at him about SDNY. Whitaker’s rebuttals, Nadler said, were “directly contradicted by several media reports” and other people with “direct knowledge” of the calls he got from the White House.
In a floor speech last week announcing his opposition to Barr’s confirmation, Virginia Sen. Mark Warner, the top Democrat on the Senate Intelligence Committee, warned that any Trump pardons for people tied up in either the Mueller or SDNY investigation “would represent an abuse of power that would require a response by Congress.”
Barr said SDNY’s work stands on the other side of a red line that he wouldn’t let Trump cross. Pressed by Democratic senators during his confirmation hearing last month, the soon-to-be attorney general said he’d protest the removal of SDNY’s head if he thought the president had nefarious intentions.
“I would not stand by and allow a U.S. attorney to be fired for the purpose of stopping an investigation,” Barr said.
Article originally published on POLITICO Magazine
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