Who is he kidding?
Michael Cohen will be remembered as a sleaze bag lawyer who did Donald Trump’s bidding and broke numerous laws, a few of which he admitted to.
Who is he kidding?
Michael Cohen will be remembered as a sleaze bag lawyer who did Donald Trump’s bidding and broke numerous laws, a few of which he admitted to.
There’s a lot of excitement in the press about the Michael Cohen plea deal, but it should be made clear that there is no suggestion at this point that President Trump is in any legal jeopardy, though he may have lied to the American people when he suggested he had avoided business dealings with the Russians.
Unfortunately, not the first fib by the First Fibber.
Cohen, Trump’s former attorney, is cooperating with special prosecutor Mueller and pleaded guilty to lying about his contacts with the Russians about building a hotel in Moscow.
And apparently, he was keeping then-candidate Donald Trump informed the whole time. Because Trump had been trying for two decades to build the damned thing.
It’s not a good idea for a presidential candidate to be dealing with a foreign power, particularly an adversary, since it could affect his policies and approach to the other country.
But building hotels is not illegal.
From a piece I have running today on the NBC News website:
Last week was widely held to be the darkest of President Donald Trump’s presidency. His longtime former attorney Michael Cohen pleaded guilty to a campaign finance violation — paying off Trump mistresses in what amounted to an illegal campaign contribution — and indicated Trump put him up to it. It was, some said, the beginning of the end.
Well, the end may come. But this is not the beginning of it. Trump is not going to be forced out of office because of infidelity (which he has denied). Congress has been down that road before — and it led nowhere.
Trump’s voters are not going to abandon him over this issue, just as President Bill Clinton’s didn’t when he faced impeachment in 1998. Given that Congress decides on impeachment and it is essentially a political act, Congress will respond to the demands of voters — enough of them, anyway — and leave Trump in the Oval Office.
Read the rest of the article here. I hope you have a chance to take a look!
Yes, Politico. Personally, I find Politico a little less biased than some of the other liberal mainstream outlets. And I worked with the reporter on this story, Josh Gerstein, at the White House for several years. Unlike some of my colleagues there, I never had any idea what his political leanings were.
Anyway, Gerstein has written a brave story given the current climate, reporting – yeah, actually reporting – that attorneys say Trump would have to have known that the payments to his alleged mistresses violated campaign law.
I’m nearly certain Trump on his own would not have known. And I’m willing to bet Cohen, who was tasked with handling Trump’s personal garbage and not campagin stuff, didn’t know either. And if he did know, there’s probably no proof that he informed Trump, if that’s what he did, which I kind of doubt he would.
Anyway, as I’ve mentioned, if it even occurred to Cohen that the payments might be illegal, he may well have determined they were not, given that even a former FEC chair wrote today that they probably were not campaign expenses.
From the Politico piece:
Cohen’s admission that he violated campaign finance law while acting at Trump’s direction is far from rock-solid proof that the president is also guilty, even if Cohen is being entirely truthful, these lawyers said.
“The fact Cohen did something illegal doesn’t mean Trump did anything illegal,” said Jan Baran, a longtime Republican campaign finance lawyer . . .
A very high legal standard that is applied in criminal cases involving alleged campaign finance violations means Trump might not be guilty even if his lawyer is.
“Under the law, it’s quite easy for two people involved in the same act to have different criminal consequences,” said Andy Grewal, a University of Iowa law professor.
That distinction is particularly critical in campaign finance cases because the law limits criminal prosecutions on those charges to instances where someone “knowingly and willfully” defied legal requirements.
As a lawyer, Cohen could be assumed to have some familiarity with federal election law. Prosecutors may well have proof in emails or other documents that he regularly discussed compliance with such statutes.
Proving that Trump knew at the time that the payouts were intended to influence the presidential race, and that he knew they were illegal, could be much harder. Perhaps such records exist, or maybe Cohen is prepared to say that he told Trump the way they were handling it was illegal, but the lawyer never said that in court on Tuesday.
“In order to prove criminal intent, you have to point to evidence that the actors knew or had reason to know what they were doing was illegal,” said Baran, the GOP campaign finance lawyer.
It doesn’t matter, of course, if Democrats win the House. They will use this to impeach him. The party is already being run my Maxine Waters and Alexandria Ocasio-Cortez.
But it is important if Republicans take the House, because they will have to justify not proceeding with impeachment. So far, there are no grounds for it. It’s unlikely Trump committed a crime here, and even if he did, a campaign finance violation hardly constitutes a “high crime and misdemeanor.”
Former Federal Election Commission Chairman Bradley Smith indicates in a Washington Post op-ed this morning – which, surprise, suprise, has already fallen off the front page – that Michael Cohen’s payments to President Trump’s alleged former mistresses were not campaign expenses under the law.
Smith cites the same statute I did in a piece Tuesday, which states that if the payments would have been made anyway for personal reasons, they are personal expenses, not campaign expenses.
Therefore, the payments could not be considered donations and criminally in excess of the donor limits.
And he adds a great counterfactual to make his point. JUST IMAGINE IF TRUMP HAD USED CAMPAIGN FUNDS TO PAY THE WOMEN OFF!
From the piece:
Regardless of what Cohen agreed to in a plea bargain, hush-money payments to mistresses are not really campaign expenditures . . .
Suppose Trump had used campaign funds to pay off these women. Does anyone much doubt that many of the same people now after Trump for using corporate funds, and not reporting them as campaign expenditures, would then be claiming that Trump had illegally diverted campaign funds to “personal use”? Or that federal prosecutors would not have sought a guilty plea from Cohen on that count? And that gets us to a troubling nub of campaign finance laws: Too often, you can get your target coming or going.
Yes, those payments were unseemly, but unseemliness doesn’t make something illegal. At the very least, the law is murky about whether paying hush money to a mistress is a “campaign expense” or a personal expense. In such circumstances, we would not usually expect prosecutors to charge the individuals with a “knowing and willful” violation, leading to criminal charges and possible jail time. A civil fine would be the normal response.
But Cohen is not the normal defendant, and prosecutors almost certainly squeezed him to plead guilty on these charges, in part, for the purpose of building a case for possible criminal or impeachment charges against the president, or even, daresay, “influencing the reelection” of Trump.
But what does Bradley Smith know anyway? He’s just a former chairman of the Federal Election Commission and current chairman of the Institute for Free Speech. Let’s listen to journalists on TV instead!
President Trump said Wednesday in an interview with Fox News that he knew “later on” about hush money payments made by his former attorney Michael Cohen to women accusing Trump of extramarital sex, but he did not say when he found out about the payments, at least in the clip provided by Fox News.
Ainsley Earhardt: Did you know aboiut the payments?
Trump: Later on I knew. Later on.
Cohen pleaded guilty Tuesday to making the payments as illegal contributions to the Trump campaign and said he was directed to do so by Trump.
— FOX & friends (@foxandfriends) August 22, 2018
If you look at the actual campaign finance laws, it appears that Michael Cohen – and therefore President Trump, who is already being convicted in the press as his co-conspirator – is not necessarily guilty of violating those laws.
First of all, I want to credit Mark Levin for some of the ideas in this analysis. You should listen to his radio show, on which the legal and constitutional wizard, and former chief of staff to Reagan Attorney General Ed Meese, explained the issue extremely well Tuesday evening.
Cohen pleaded guilty to exceeding political contribution limits with his $130,000 payment to Stormy Daniels to buy her silence about her one-night-stand with Trump. He also pleaded guilty to arranging an excessive “contribution” by the publishers of the National Enquirer for their payment to Karen McDougal for her story about an affair with Trump. As far as I understand it, the publishers walked away from a deal to be reimbursed for their payment, so the money didn’t come from Trump.
That Cohen pleaded guilty to a crime doesn’t necessarily mean that a crime was committed. I mean, technically, yes, because he pleaded guilty, but in reality, there may be no crimes related to campaign finance. The cases haven’t been adjudicated in court. All we have is that Cohen and the prosecutors agreed that he committed a crime.
Why would Cohen admit to a crime that doesn’t exist? Well, first, because that’s the crime prosecutors wanted, because it potentially involved the president. And second, to get them to agree not to prosecute him for far worse criminal acts.
And let’s be clear: It’s probably also the crime his attorney, Lanny Davis, who long worked for the Clintons, wanted him to admit to.
Now, is it a crime? The question is whether it was a personal expense or a political expenditure – that is, effectively a campaign contribution because it was designed to help elect Trump president. But the standard for determining whether it is not a personal expense is NOT whether the expense could help elect a candidate. It is this, according to the FEC website:
Commission regulations provide a test, called the “irrespective test,” to differentiate legitimate campaign and officeholder expenses from personal expenses. Under the “irrespective test,” personal use is any use of funds in a campaign account of a candidate (or former candidate) to fulfill a commitment, obligation or expense of any person that would exist irrespective of the candidate’s campaign or responsibilities as a federal officeholder.
More simply, if the expense would exist even in the absence of the candidacy or even if the officeholder were not in office, then the personal use ban applies.
Conversely, any expense that results from campaign or officeholder activity falls outside the personal use ban.
There is strong reason to believe – and thus reasonable doubt with respect to a conviction – that the “expenses” of paying off MacDougal and Daniels exist outside of the campaign and are therefore personal expenses. Daniels herself has claimed that pressure from Trump not to tell her story existed long before the campaign began.
In a May 3 piece, the article, Politifact quotes legal experts who question whether this is technically a campaign expenditure.
Stephen Hoersting, a lawyer with the Gober Group, a law firm that has done high-level work for the Republican Party, said Washington officials steer clear of apportioning the reasons for an expenditure.
“The FEC does not ask, ‘Would it help a candidate to buy the silence of an old girlfriend?’ ” Hoersting said. “Rather it asks, ‘Would there be any other reason, other than the campaign, for this person to buy the silence an old girlfriend?’ The answer here is yes, there are many reasons a man like Trump would want to buy the silence of old girlfriend.”
Now, you and I may think, if we’re honest, Of course this was related to the campaign. It happened during the campaign. But that’s not the test. The test is whether the expense would exist outside the campaign. It would seem that a rich man accused of having affairs with women who want to be compensated for their silence is something that would exist outside the campaign. That’s what the jury decided in the trial of former presidential candidate Sen. John Edwards, who during a campaign paid off the mistress he had impregnated. That Daniels and McDougal decided to press their claims during the campaign, when it would be most advantageous to them, was their choice, not Trump’s.
What’s more, Cohen and Trump might have at least believed that they were operating within the law, based on the facts. But I doubt either Cohen – or, almost certainly, Trump – understood this as a campaign donation in the first place. That’s the downside of not having a well-organized campaign stocked with veteran campaign operatives. The upside is that he won the presidency.
Finally, the money ultimately came from Trump. Cohen was just the bagman, essentially. Personal expenditures by a candidate on their campaign are not subject to campaign finance limits.
Paying off your paramour, as far as I know, is perfectly legal, even if awfully tawdry. I don’t think Trump or Cohen intended to commit a crime, and it’s highly questionable that they did.
According to Fox News:
Michael Cohen, President Trump’s longtime personal attorney, admitted Tuesday to violating federal campaign finance laws by arranging hush money payments to adult film star Stormy Daniels and former Playboy model Karen McDougal “at the direction” of then-candidate Trump.
As part of a plea deal, Cohen admitted that the payments were coordinated with Trump in an effort to influence the 2016 presidential election, in which Trump defeated Hillary Clinton.
In total, Cohen pleaded guilty to five counts of tax evasion, one count of making a false statement to a financial institution, one count of willfully causing an unlawful corporate contribution, and one count of making an excessive campaign contribution.
Cohen could have received up to 65 years in prison if convicted of all charges. However, as part of his agreement, Cohen agreed not to challenge any sentence between 46 and 63 months. The deal does not involve a cooperation agreement with federal prosecutors.
Cohen was behind a $130,000 payment to adult film star Stormy Daniels, and discussed with Trump a separate payment to former Playboy model Karen McDougal — who said she had an affair with Trump in 2006. Cohen released a tape of a conversation from September 2016 of him and Trump discussing the possible payment to McDougal.
The Wall Street Journal reported in November 2016 that McDougal was paid $150,000 by American Media Inc. — the parent company to the National Enquirer — for the rights to the story, but it never ran. Trump has denied any affair with either Daniels or McDougal.
President Trump should hardly be surprised that the lawyer doing his dirty work was doing a bit of his own by taping his client. And we should hardly be surprised that, given Trump tried to buy Stormy Daniels’s silence, he was trying to do the same for Karen McDougal with whom, unlike Daniels’s one-night-stand, he… Continue Reading
President Trump’s former attorney Michael Cohen secretly recorded Trump discussing a payment to Karen McDougal, presumably to buy her silence about the alleged affair to two had. McDougal and Trump, not Cohen and Trump, of course. However, it’s not completely clear to me what this means. While awfully tawdry, Trump current White House attorney Rudy… Continue Reading
I dunno. Michael Cohen doesn’t, you know, impress me as the most ethical attorney around. Wait a second, I don’t want to get sued. I’m not saying he’s unethical. Just not the most ethical, okay? My gosh, call of your dogs! Let’s face it Mr. President, you hired a shark because you needed an attorney… Continue Reading
No, I don’t think Rudy Guiliani planned his revelation to Fox News’ Sean Hannity that President Trump reimbursed attorney Michael Cohen for paying off Stormy Daniels. I think Guiliani is a loose canon, always has been, and probably should not be on Trump’s legal defense team. Notably, Giuliani, when asked, didn’t rule out he’d be… Continue Reading