Diary

Cohen's Claims of Being an Innocent Lackey Don't Stand up to Scrutiny

Attorney Michael Cohen talks to a reporters as he walks in New York, Wednesday, April 11, 2018. Federal agents who raided the office of President Donald Trump's personal attorney, were looking for information about payments to a former Playboy playmate and a porn actress who claim to have had affairs with Trump, two people familiar with the investigation said. (AP Photo/Mary Altaffer)

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As I wrote yesterday, President Trump’s former lawyer Michael Cohen plead guilty to several charges and what that means is complicated. Most of those charges centered around his own personal corruption with various business dealings in New York but he also plead guilty to two campaign finance related crimes. Those are the ones that are supposedly going to take down Donald Trump.

That’s unlikely for two reasons.

First, it’s a very open question whether the payments were illegal in the first place.

Listen to former FEC Chairman Bradly Smith explain (scroll the second video to hear him). To note, Mr. Smith was a Clinton appointee and is not a Trump partisan. The basic premise here is that because the incidents involved in these NDAs predate the campaign and have logical ramifications outside of just the election (i.e. business, marriage, etc.), they can not be campaign finance violations. This is the John Edwards defense, who was acquitted (along with the jury hanging on other counts) after being charged with using campaign money to pay off his mistress in 2008. He said his reason was not just the election but to protect his wife. Trump will have the same defense here. He’ll also have claims of protecting business interests.

To put it simply, this is all a stretch. It’s very unlikely either of these charges would stand up to scrutiny in court and that’s likely why prosecutors let Cohen off so easy on his plea deal. The allegations against Trump are the meat for them (they don’t really care about getting Cohen on unrelated business dealings) and they wanted to have those allegations without having to actually adjudicate them.

When you take that along with Trump’s prior history of paying people off before being a candidate, it becomes very, very tough to prove these payments were strictly a campaign contribution.

Secondly, even assuming they were illegal, that still doesn’t necessarily point to any illegal activity on the President’s part. 

Again, I’m highly skeptical the payments are illegal, but for the sake of talking about Mr. Cohen’s latest assertions, let’s game this out.

Here’s Lanny Davis’ (Cohen’s lawyer) making claims that Trump “directed” the payments in question.

“It’s not about evidence. It is definitive, indisputable that Donald Trump’s lawyers said in a letter to the special counsel that President Trump directed – the same word that Michael Cohen used in court yesterday under oath – directed Michael Cohen to make illegal payments. It’s not a dispute. It’s not about credibility. His own lawyers used the word directed,” Davis told “CBS This Morning” on Wednesday.

For starters, Cohen saying something is fairly meaningless. He has no credibility and even though I think it’s certain that Trump knew about these payments, it’s not relevant in a legal sense.

The real issue here is what it means for Trump to have “directed” these payments. Thanks to Mr. Cohen, we actually have evidence that shows us how this played out, at least in regards to the McDougal payment.

Below is the transcript of the relevant portion.

COHEN: Correct. So, I’m all over that. And, I spoke to Allen about it, when it comes time for the financing, which will be —

TRUMP: Wait a sec, what financing?

COHEN: Well, I’ll have to pay him something.

TRUMP: [UNINTELLIGIBLE] pay with cash …

COHEN: No, no, no, no, no. I got it.

TRUMP: … check.

Here’s where Cohen’s claim of being an innocent lackey who was ordered by an evil mastermind to make these payments falls flat.

It’s actually Michael Cohen who is heard on the tape setting up and suggesting these payments be made. Did Trump give his approval and have a hand in it? Absolutely. That’s undeniable, yet campaign finance laws come down to intent to violate them.

If a personal lawyer tells you he needs to make a payment, you give him the go-ahead, and he does it, it’s illogical for that lawyer to then come back and claim his client made him to do something illegal. It’s a lawyer’s job to 1) know the law and 2) not advise his client to do something that breaks the law.

There’s a reason almost all campaign finance violations are handled civilly. In this case, it’s highly probable that Trump had no idea he was possibly running afoul of campaign finance laws when he agreed to the payments in question.

Unless Mr. Cohen has evidence that he warned Trump of legal violations and that Trump knew he was breaking the law, proving intent here is almost impossible.

Lastly, it should be noted that Lanny Davis essentially admitted that they have no evidence to back up their claims.

“Do they have evidence that… then-candidate Trump, directed Michael Cohen to do this? other than Michael Cohen’s word that the president directed him to do this, do they have other physical evidence that the president directed Michael Cohen?” Todd asked.

Davis said that Team Trump’s lawyer Rudy Giuliani admitted the then-candidate directed Comey to make the payment in an interview. Secondly, there is “physical and electronic evidence” that money was paid to Daniels from the Trump conduit that is “all documented.

Davis eventually relented and said it comes down to Cohen’s word versus Trump’s.

To reiterate, I don’t think these payments were illegal in the first place, but even taking the plea at face value, I still see no crime here committed by the President without decisive evidence being presented that he intended to violate campaign finance law. That doesn’t appear to exist.

Democrats calling Trump an “un-indicted co-conspirator” are making fools of themselves. Terms have meaning, especially in the legal world. Un-indicted co-conspirators are actually named in court filings. They aren’t just whoever Democrats say they are.

Does all of this say anything good about President Trump’s character? No, and I wouldn’t gaslight anyone by claiming such. I also won’t pretend to believe that Trump’s a victim here and didn’t actually know about the payments. His past is coming back to haunt him and he brought this on himself. That’s life and there’s some justice in that.

With that said, the idea that we are going to impeach a President over (likely legal) payments dealing with events that happened 12 years ago is asinine. Especially given that this is all based on the word of a proven liar over a charge that’s un-ajudicated. Doing that would profoundly harm the country and that’s probably putting it lightly.