Neal Katyal, a former acting solicitor general during the Obama administration, has an opinion piece in The New York Times that cuts to the heart of the import of Michael Cohen’s claims that he made hush money payments to two women at Donald Trump’s direction. Katyal writes that, aside from the specific crime of violating campaign laws that appears to have been committed, these claims also means that Cohen and Trump were in a conspiracy to break the law. And conspiracy, as he notes, is a particular and serious crime in and of itself.
Describing why two people who might have received six-month sentences for each selling a marijuana joint would both receive five years of jail time if they conspired to sell a single joint, Katyal writes:
The answer has to do with the harm to society when individuals agree with one another to commit criminal acts. These acts are seen as possessing a higher level of moral culpability and are also more dangerous. Two people can often do more harm than one. And those criminal economies of scale are sometimes supplemented by psychological dangers. People tend to take more risks in groups than alone. For these reasons, the law has always treated conspiracy harshly.
I'd push this thinking somewhat further, though: conspiracy can be seen as requiring forceful punishment because it is not only a scaled-up effort to break the law, but also both an agreement that the prevailing law itself does not matter and that the conspirators de facto agree to adhere to a different set of rules. In essence, the conspirators tacitly set themselves up as a subversive, quasi-political entity that challenges the legitimacy of the prevailing legal structure.
This might seem a gross overstatement when we’re talking about two amateur pot dealers who work together to move a single joint - why dignify them as revolutionaries when they’re plainly just criminals working together, any supposedly political dimension to their act ending with their single sale? However, I think this perspective begins to hold a lot more water when we think about the case of a powerful person like the president, whether in the Cohen payoff matter or in his general attitude toward the law. For the president to engage in a conspiracy, and to then either deny the conspiracy or say that no law was broken, is for him to very much argue that he lives by a set of rules that he has established and has effectively invited his supporters to agree to, not by the law as we commonly know it. And when the president does this, is it really much of a stretch to say that he has set himself up in an insurrectionary manner in opposition to our legal system, not just breaking the law but setting up an entirely new framework as he sees fit?
It’s not surprising that the president’s criticism of the practice of “flipping” witnesses against higher-value targets comes in the context of his “no conspiracy to see here” pushback. Not only is flipping how conspiracy charges are often made to stick, but even more basically, it’s a commonly used, legal practice in American jurisprudence. Yet, out of the blue, we now behold the president speaking with the perspective of a mob boss, talking about what a shame it is that the feds have a way to convict high-value criminals. In raising the possibility of a world in which the government is not allowed long-established legal norms to bring lawbreakers to justice, we can see the president tracing out an alternative system of law for our country. And conspiracy is the key concept here, because for the president’s subversion of the law and its replacement with a criminal-friendly perspective to work, he must recruit other political figures into agreement with this deranged and authoritarian perspective. The political dimensions of conspiracy, when conducted by the president, become quite glaring.
Thinking about conspiracy provides a basic insight about the nature of this presidency. We talk so much about the president’s disregard for the law, but that’s only the half of it. He’s not simply breaking the law, but, due to the conspiratorial acquiescence of his base and of GOP politicians, attempting to substitute a new legal framework on our country. Its principles are really very simple: if the president does it, it’s legal. Also, if a wealthy and/or powerful person does it, it's also legal, unless the president doesn’t think so, in which case it's illegal until proper arrangements can be made to allay the president’s concerns.
At a rally here in Portland a couple months ago against Trump’s immigrant family separation policy, one of the speakers reminded those assembled that the word “conspire” literally means “to breathe together.” In doing so, she was urging the protestors to playfully adopt the idea of "conspiring" against the bad actions of the Trump administration, as a collective action we were taking by literally all showing up at a particular place and sharing the same morning air. The elegance of this idea, and its ironic reminder that our democracy is no conspiracy at all but a society-wide understanding that we hash out our differences and make a nation through open discussion, is the antithesis of the president’s suggestion that prosecuting little fish to bring down kingpins is the height of unfairness. We don’t need to pretend that our legal system is at all perfect or not in need of major reforms to recognize that the president’s remarks don’t pass even the most basic tests of good faith or bullshit detection. When Donald Trump talks like a mafia don, we hear two things: a very powerful man threatening to impose his laws for our own, and a very ridiculous man clearly trying to save his own ass with transparently self-serving arguments.