Patterico's Pontifications

3/27/2023

Constitutional Vanguard: Questioning an “Advisory Opinion” About the Possible Stormy Daniels Trump Prosecution

Filed under: General — Patterico @ 2:52 pm



I have a new free 5000-word post up, questioning the analysis of Sarah Isgur and David French regarding the potential Manhattan prosecution of Donald Trump for falsifying business records.

The long and short of the piece is this: French and Isgur argue that the Department of Justice declined to prosecute the conduct that elevates the charge to a felony. I disagree — because I think Michael Cohen’s crime might be the relevant conduct. And all Trump had to do was try to cover up Cohen’s crime.

I also point out that, while DOJ did decline to prosecute Trump, it does not appear they did so because they doubted his guilt. To the contrary.

It’s all there in the post. This one is fully free. If you like it, subscribe to get more like it, right in your inbox.

91 Responses to “Constitutional Vanguard: Questioning an “Advisory Opinion” About the Possible Stormy Daniels Trump Prosecution”

  1. But why can’t the crime that Trump was trying to conceal be Michael Cohen’s campaign finance violation?

    Because he did not commit one. That he confessed to committing one does not change that.

    He plead guilty to the list the prosecutor provided, only to obtain favorable treatment for the other crimes (e.g. evading federal taxes on $4 million) that he DID commit. The special counsel needed a “conviction” on a campaign finance crime to justify his involvement, so he got one. But that does not mean that any court has ever decided that the actual activities were criminal.

    Kevin M (1ea396)

  2. I shudder in advance at some of the comments I fully expect to see here in response to this post.

    Simon Jester (61b6e2)

  3. Cohen’s “crime” is an illegal campaign contribution only if payment of blackmail to protect a candidate is a valid use of campaign money, and clearly so.

    Kevin M (1ea396)

  4. You need to read the essay, Kevin M. Cohen was convicted. That makes him guilty. Period.

    DRJ (0abb72)

  5. Judges don’t accept a guilty plea without first determining that there was a crime charged and facts/conduct that supported a conviction. The judge has an independent duty from the prosecutor to establish criminal conduct occurred before accepting a plea.

    DRJ (0abb72)

  6. You need to read the essay, Kevin M. Cohen was convicted. That makes him guilty. Period.

    I think I will have to be more clear then.

    I do not dispute that Cohen plead guilty and that Cohen might even believe that he was guilty of the crime charged. He has no personal recourse since he plead guilty.

    That is not germane to the issue however, which is “Was Cohen’s activity a crime” in any way that a third party could be implicated? His plea does not prove anything other than the prosecutor and Cohen agreed that it was a crime, and that Cohen committed it.

    To find Trump complicit, you have to show that what Cohen did was a crime. His plea alone is not proof. Normally this is straightforward, but the idea that paying blackmail is a campaign activity is pushing the envelope rather a bit. Perhaps you have a case on point? I think there is at least one case that argues that it is not.

    Kevin M (1ea396)

  7. Judges don’t accept a guilty plea without first determining that there was a crime charged and facts/conduct that supported a conviction. The judge has an independent duty from the prosecutor to establish criminal conduct occurred before accepting a plea.

    Not quite the same thing as proof, and not subject to appeal (because a guilty plea). One would have to show, in any case against Trump, that it was, in fact, a campaign expense.

    I would like to hear attorneys here go on record: If a client asked you if you could pay blackmail with campaign funds, what would your advice be?

    Kevin M (1ea396)

  8. I would like to hear attorneys here go on record: If a client asked you if you could pay blackmail with campaign funds, what would your advice be?

    “No! And now that you’ve told me, I won’t snitch you out, but if you go ahead and do it, anyway, I will not be your attorney, anymore.”

    nk (abbf98)

  9. I’ve been trying to think what Cohen’s guilty plea could be used for at trial:
    1. The defense could use it to impeach Cohen with conviction for a felony or other crime involving moral turpitude.
    2. The prosecution could use the allocution to rebut a charge of recent fabrication.
    3. Conceivably, the prosecution could use it to impeach Cohen (in the same sense that a starving person could conceive cutting off, cooking, and eating their leg).

    If anybody can think how it is otherwise competent evidence, please let me know.

    nk (abbf98)

  10. So, nk, you won’t go for my idea of you paying the blackmail in secret and then sending me a fraudulent series of installment bills?

    ===========

    The real problem with trying Trump here is that the general public may not be able to tell the really sleazy parts from the mundanely sleazy parts.

    Kevin M (1ea396)

  11. The prosecution could use Cohens conviction as proof that his hush money payments were federal campaign violation crimes. As I understand what P is saying, aiding someone in covering up their crimes is also a crime under this NY statute.

    DRJ (ed9b75)

  12. This may apply only to financial crimes.

    DRJ (ed9b75)

  13. Cohen’s conviction in and of itself is only binding on Cohen. Both as to facts and legal theory.

    Against Trump, it is at best a template for the prosecution. Every element of the offenses charged will have to be proven anew beyond a reasonable doubt.

    nk (abbf98)

  14. My feelings on the meaning of Cohen’s plea are summed up in the piece:

    There are, of course, limits to the significance of Cohen’s conviction. It does not establish that Donald Trump is guilty of federal campaign violations. It does not establish that Trump’s intent in falsifying records included a desire to cover up Cohen’s crime.

    But it does answer Isgur’s claim that “there’s plenty of precedent out there that if the state ties their crime to a federal crime, there needs to be a federal conviction of some kind.” And it also refutes French’s and Isgur’s repeatedly expressed idea that the feds declined to bring a case regarding the conduct that, in New York, elevates the records falsification misdemeanor to a felony.

    I didn’t address the question of whether the plea establishes that there was a crime. I think I agree with nk: on that issue, I think it’s binding on Cohen alone.

    All I was really saying is that the claim that “the feds did not charge” the conduct that elevates the crime to a felony is wrong. The assumption is that the conduct has to be Trump’s concealing his own campaign finance crime. I think it’s enough if Trump was concealing Cohen’s.

    Whether the jury would have to find that Cohen’s conduct was actually a crime? My guess is yes. But he would testify that it was and that he entered a guilty plea to it, and further testify to the facts as set forth in his allocution, which satisfied a federal judge.

    Does not seem like a huge stretch.

    Patterico (6cc6cf)

  15. The Manhattan DA’s Charges and Trump’s Defenses: A Detailed Preview

    …………. To our knowledge, no in-depth review of (the legal bases for elevating the misdemeanor business records violation to a possible felony) has yet been made publicly available, and so we walk through them here. We also analyze Trump’s likely defenses, and conclude by addressing his inflammatory recent calls to action and what the DA will do next.

    Falsifying business records under New York law can be charged either as a misdemeanor or a felony. The misdemeanor requires proof of one of several potential acts. Relevant to Trump is the statute’s prohibition of making “a false entry in the business records of an enterprise.” The evidence indicates he personally signed checks to Michael Cohen as reimbursement for the hush money payment. If DA Bragg can prove that Trump signed those checks—and it appears he can—and that Trump knew the payment for hush money was being falsely recorded as “legal expenses,” then Trump committed a misdemeanor (or likely a number of misdemeanors, if each false entry is charged separately).

    To establish a felony (i.e. falsifying business records in the first degree), prosecutors would need to prove, in addition to the elements of the misdemeanor, that Trump’s “intent to defraud include[d] an intent to commit another crime.” There are a number of candidate crimes—and we offer below an assessment of just some of the more likely options.

    ……….(W)e focus our analysis on three possibilities based on publicly available information and our collective decades of experience prosecuting and defending criminal cases: (1) federal campaign finance crimes; (2) state campaign finance crimes; and (3) conspiracy to promote or prevent an election.

    1. Federal Campaign Finance Crimes

    There is strong evidence that Trump’s conduct in the hush money payments involved federal campaign finance violations. ……….

    “Offense” is further defined (in New York Penal Law) as:

    conduct for which a sentence to a term of imprisonment or to a fine is provided [1] by any law of this state or [2] by any law, local law or ordinance of a political subdivision of this state, or [3] by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same.”

    ………… The third option in the statute, “any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same,” could include federal law. In contrast to the other two clauses, the third does not explicitly limit “governmental instrumentality” to be “of this state.” ………..
    ………….
    According to press reports, however, it appears state campaign finance crimes may be the primary or exclusive basis for the felony upgrade. ………

    2. State Campaign Finance Crimes

    New York has a robust set of laws regulating elections that purport to apply broadly, including explicitly to “federal” contests. New York’s campaign finance laws also apply broadly to candidates who seek election “to any public office” (emphasis added). As a result, crimes outlined in New York’s state campaign finance laws might appear on their face to apply to candidates equally whether running for federal or state office—including for the presidency.

    But the reality is more complex. ………. That the hush money payments were campaign expenditures seems relatively clear (as demonstrated, in good part, by Cohen’s conviction of those offenses at the federal level). They transgressed applicable state (and federal) limits and/or reporting rules. Moreover, the evidence supports the proposition that Trump was aware of that. For example, one of Cohen’s audio recordings of Trump indicates that Trump knew about the payments that would violate campaign finance laws.……….
    …………

    3. Conspiracy to promote or prevent an election

    A more likely candidate for the crime that may convert the books and records charge to a felony is N.Y. Elec. Law § 17-152: Conspiracy to promote or prevent election. Under that statute, “Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.” Trump appears to have conspired with Cohen (and others) to promote his own election by making the hush money payments. The key questions are whether “unlawful means” were used and whether this statute is preempted by federal law.
    ……………

    4. A catch-all alternative

    Either in addition to or instead of any of the offenses outlined above, DA Bragg may also consider the catch-all offense within New York state’s election code as the predicate crime for the books and records charge. That statute, N.Y. Elec. Law § 17-168, criminalizes any knowing and willful violation of any New York election law (to the extent the “violation is not specifically covered by” some other provision). There are many New York election laws Trump may have violated in the hush money scheme. ……..
    ……………
    Trump could raise a defense based on the advice of counsel. We explained that those can be overcome.

    Three more arguments that Trump may advance are: federal law preempts and thus blocks the campaign and election related state offenses at the state level; the funds used were not campaign money, and that the payment would have been made “irrespective” of the election.……….
    …………

    Rip Murdock (7376a8)

  16. The prosecution could use Cohens conviction as proof that his hush money payments were federal campaign violation crimes.

    No. They. Can’t. All they can prove is that Cohen agreed that he committed a crime. Why he did that may have nothing to do with the truth, and the Truth is what you need to establish to hang it on Trump.

    Kevin M (1ea396)

  17. My concern is the extent of federal campaign finance law. There is a very grey area around what constitutes a campaign expense, and when you get to “blackmail payments” — which by their nature are secretive — I doubt that 2 attorneys will give the same advice.

    Do you prosecute someone who pays such out of their own pocket? Or someone who pays out of campaign money? If you are going to prosecute, you should have some really good cases on point why the individual should KNOW the answer on how to proceed.

    Kevin M (1ea396)

  18. Whether the jury would have to find that Cohen’s conduct was actually a crime? My guess is yes. But he would testify that it was and that he entered a guilty plea to it, and further testify to the facts as set forth in his allocution, which satisfied a federal judge.

    This is not the kind of thing that juries are competent to decide. New legal theories need judicial review, and not much of that comes out of a guilty plea. Even if a jury in this case were to come to the conclusion that Cohen committed a federal crime, the appeal would be obvious. And swift.

    But they might not, either. Trump’s attorneys (assuming he didn’t hire the usual fukwits) would argue that it was unclear that Cohen committed a crime, and being unclear, Trump’s part in it wasn’t criminal conduct.

    And again, the first case sets the pattern. Lose it and everything after that is tainted. See Susan McDougal.

    Kevin M (1ea396)

  19. Trump solidifies support in GOP primary: poll

    ‘Former President Trump is gaining ground in the 2024 Republican presidential race, according to a new Harvard CAPS/Harris Poll that offers some of the latest evidence that GOP voters may be coalescing around their party’s standard bearer once again.

    Fifty percent of Republican respondents said that they plan to vote for Trump in the primary, marking a 4-point gain for the former president since February. Florida Gov. Ron DeSantis, a likely candidate for the party’s 2024 nomination, remained relatively stagnant, pulling 24 percent support, according to the poll.

    The survey is the latest to show Trump picking up steam in the race for the GOP presidential nod after his support slipped late last year and early this year. For months, many Republicans have urged that the party should move on from the former president, but some recent polls have found that GOP voters may not be ready to do so.

    No other Republican hopeful, declared or potential, has double-digit support, the Harvard CAPS/Harris Poll found. Former Vice President Mike Pence, who hasn’t yet announced a campaign, got just 7 percent in the survey, while former United Nations Ambassador Nikki Haley, who jumped into the race last month, scored only 5 percent.

    In a hypothetical head-to-head match-up between Trump and DeSantis, the former president scores 56 percent to DeSantis’s 44 percent, the poll found. Overall, 57 percent of GOP voters who responded believe that Trump will win the party’s presidential nomination in 2024…

    https://thehill.com/homenews/campaign/3920017-trump-solidifies-support-in-gop-primary-poll/

    And he was impeached. Twice. Populism keeps rooting deeper and deeper.

    DCSCA (3d94aa)

  20. … and further testify to the facts as set forth in his allocution, which satisfied a federal judge.

    Kevin,

    That is the important part that I think you are missing. Defendants who plead guilty have to testify to facts that support their pleas. They have to detail what they did for all issues of the criminal offense.

    DRJ (00b52a)

  21. A jury could decide that his testimony is not true. Thus, even though Cohen plead guilty, a Trump jury could decide there was no federal crime by Cohen and/or there was no cover up by Trump. But Cohens gconviction plus his testimony of what he did is evidence that a federal crime was committed.

    DRJ (00b52a)

  22. I agree:
    It does not establish that Donald Trump is guilty of federal campaign violations. It does not establish that Trump’s intent in falsifying records included a desire to cover up Cohen’s crime.

    My first pass at the Cohen gift basket has $4M, $500,000, of sleazy living directly on Cohen, and then we have this $280,000 Cohen says to put to a retainer $38,000 January, $38,000 February, and at that point it looks like Cohen’s idea. So yes, Cohen was guilty because he is the one who seems to have written the script. “Send me this much money and call it payment on a retainer agreement” Cohen knowing he’d never written or submitted any such agreement. I know the details of my attorneys retainers and would be very very interested in a monthly bill for services I didn’t remember authorizing, so this is fishy all around, but Cohen has just admitted he’s $4.5 million dollars of a guilty greedy little fish.
    I agree with DRJ that a judge looking at this would easily decide Cohen was guilty of what he plead to.

    Trump should forget about running for re-re-election and instead stall, run out the clock until after the 2024 election is over and all this will disappear… as long as he does.

    steveg (fca297)

  23. I really appreciate your clarifying comments on this thread, DRJ.

    Dana (1225fc)

  24. Kevin
    I think you make a good point on law that perhaps needs clearer brighter boundaries and a how to or how not to deal with sordid realities and their problems. What is interesting to me as a deeply cynical person about politicians is my personal belief that the list of people in Washington, past and current, who have illegally/legally paid off blackmail via fixers is probably stupendous in both name and scope. I guess the rule of thumb should be the advice I’d give the virulently anti gay (from the pulpit) pastor when he inevitably is blackmailed by the methed up gay party rental: If you must, pay cash. Your own cash, and for godsakes do not have the church write a check for “party services rendered”.

    steveg (fca297)

  25. That is the important part that I think you are missing. Defendants who plead guilty have to testify to facts that support their pleas. They have to detail what they did for all issues of the criminal offense.

    What you are missing is that what he did is only arguable an offense. There was no controversy in that courtroom, and no one to say “no that was not an offense.” Oh, maybe the judge could have, but why would he?

    Kevin M (1ea396)

  26. Again, DRJ, is it a crime to use campaign funds to pay blackmail? Or is it a crime to use non-campaign funds to pay blackmail about a candidate?

    Please point me to the law that answers these questions.

    Kevin M (1ea396)

  27. But Cohens gconviction plus his testimony of what he did is evidence that a federal crime was committed.

    No, it is evidence that Cohen is guilty of a federal crime, and perhaps that a federal judge didn’t have a problem with it. That is NOT the same thing as evidence that a crime was committed.

    Kevin M (1ea396)

  28. Put it another way:

    As I understand it, the prosecutor in the Cohen case had a novel theory of what constituted a campaign contribution. I am troubled by setting a precedent with a guilty plea.

    Kevin M (1ea396)

  29. Except ford every republican president since nixon has betrayed his country for political gain. Yet none have been prosecuted for their acts. Know wonder republicans think they can get away with treason and sedition.

    asset (3d2215)

  30. I give you points for persistence, Kevin.

    DRJ (0abb72)

  31. I admire your concern but every criminal conviction starts with a criminal law that was new when it was first put into law, and that was prosecuted for the first time. There isn’t a first or second or third time exemption for crimes.

    Further, I don’t think Cohen’s prosecution is that novel. People and businesses that operate in foreign countries sometimes pay bribe money because that is common in those countries, and they want to treat it as a business expense in the US. But it is not legal here. Similarly, paying hush money to silence a detractor may be effective but calling it a business or campaign expense is not allowed.

    DRJ (0abb72)

  32. Cohen’s conviction is judicially noticeable. And if New York’s judicial notice rule is like Illinois’s, the court can instruct the jury that they may but are not required to accept it as conclusive. Even in regard to Cohen.

    But when it comes to Trump, I think the prosecution will need to establish some degree of accomplice liability. Before, during, or after the fact. Including both the corpus delicti of the offense Trump is accused of trying to conceal and his scienter. Independently of the fact of Cohen’s conviction, but it can be by his testimony in the present case.

    I think the prosecution will need some pretty elegant legerdermain to avoid a limiting instruction, honestly. That Cohen’s conviction can only be considered for purposes of impeachment, and his allocution only to rebut a charge of recent fabrication.

    nk (377765)

  33. Similarly, paying hush money to silence a detractor may be effective but calling it a business or campaign expense is not allowed.

    But if it is not allowed as a campaign expense (and I agree it should not be), then how is a third party’s payment an illegal campaign contribution? And since the payment was extorted, it wasn’t “hush money” but a blackmail payment. It’s not like Trump wanted to pay.

    Kevin M (1ea396)

  34. I look at this thread in my IANL way, and feel like “Yes, Patterico is likely right (Always trust content from Patterico)”. But…

    I see how this plays out on CNN or mainstream media other than Fox. They will focus on the novelty of the legal theory. They may bring up John Edwards and how that worked out. They will state that the charge is based on Trump covering up Cohen’s crime. And they will call attention to all the invstigations that have swirled around Trump and the first one that beings an indictment is the one that involves a porn star (*smirk*).

    CNN and the like will certainly not be like Fox in just declaring the whole thing is illegitimate. They’ll just admire the prosecutor’s novel theory that finally beings the Donald to some kind of justice.

    That’s a bad message. Trump needs to stand trial for the offesnses that make people think he ought to stand trial. You know, stuff like putting illegal pressure on Georgia electoral people. The whole January 6 thing. Not for not using the right approach and appropriate protocols for shutting up Stormy.

    Appalled (03f53c)


  35. Trump needs to stand trial for the offenses that make people think he ought to stand trial.

    This. It is critical that the public agree that Trump deserves what he gets. Further, charging an ex-president should require considerable criminality, not just a technical offense. Think of it as a form of qualified immunity, as every president will have numerous detractors, some of whom can bring charges.

    It’s not that “If the president does it, it’s legal”, but that some things a president does may be technically illegal, but necessary. While that is not the same as Trump’s constant petty criminality, it’s a terrible precedent to bring petty charges when you have serious ones at hand.

    Kevin M (1ea396)

  36. Should Stormy have been charged with extortion?

    Kevin M (1ea396)

  37. mr. former president donald trump, who has had more wives born and raised in the soviet bloc than any president in the history of the united states, did not give miss stormy money because he wanted to be president

    perish the thought

    no, no, he gave miss stormy money because he did not want her to forever ruin her chances to be president by selling her story

    just because she needed money

    that’s the way he is

    a giving person

    always give, give, give

    nk (377765)

  38. Should Stormy have been charged with extortion?

    Would Trump have testified?

    nk (377765)

  39. But if it is not allowed as a campaign expense (and I agree it should not be), then how is a third party’s payment an illegal campaign contribution? And since the payment was extorted, it wasn’t “hush money” but a blackmail payment. It’s not like Trump wanted to pay.

    https://www.usatoday.com/story/news/2018/12/14/michael-cohen-explaining-why-hush-money-illegal-donation/2287647002/

    DRJ (0abb72)

  40. Reasonable people can differ. What I call hush money, you call extortion. My view is that when Stormy said she was going public with their relationship — probably in a paid story — that prompted Trump to tell Cohen to offer her hush money.

    She had the story and other willing buyers. They had the incentive to hush her up.

    DRJ (0abb72)

  41. The grand jury heard again from David Pecker, yesterday. He was the National Enquirer publisher who caught and killed the Playboy model Karen McDougal story but the same deal with Stormy did not go through.

    nk (377765)

  42. #40

    I don’t think a jury will convict, whatever the legal niceties of the situation. Buying off your mistress is something rich guys do, says average prson on the street. The case, if it is to be made, belongs to Melania, not a New York DA.

    This isn’t the law — this is the reality of case that by nature of its perpetrator is going to be politically contentious. See also, Bill Clinton, on how well this type of case works out in the political arena.

    Appalled (96727d)

  43. I won’t try to argue with an experienced prosecuting attorney. I hope you’re right, Patterico. If Bragg has proof beyond reasonable doubt that Trump committed a felony, then he should proceed.

    Paul Montagu (8f0dc7)

  44. On the one hand, I don’t think this case should be prosecuted from a political standpoint. It isn’t simple enough to convince people of varying political views.

    On the other hand, I would expect NY to prosecute. Cohen did the dirty work but Trump authorized it and covered it up. They both should be held to account. There will always be Cohens willing to break the rules for politicians and others. It isn’t helpful to the system or society to punish the little fish and let the big fish swim on.

    DRJ (0abb72)

  45. DRJ,

    You still have not explained how payment can be both an illegal campaign donation AND not a legal campaign expense.

    Kevin M (1ea396)

  46. How does this compare to the ‘Silky Pony’ John Edwards case?

    ingot9455 (1d0309)

  47. American state and federal laws typically do not let someone take business (or campaign) expenses/deductions for illegal acts. It is against public policy. Is that what you mean?

    DRJ (0abb72)

  48. This isn’t the law — this is the reality of case that by nature of its perpetrator is going to be politically contentious. See also, Bill Clinton, on how well this type of case works out in the political arena.
    Appalled (96727d) — 3/28/2023 @ 10:22 am

    let’s not equate impeachment, which is inherently a political act, with state or federal prosecution, which should not be.

    Trump and Clinton deserve blame for debasing themselves. As for debasing the legal process, their help is hardly necessary.

    JF (0e9426)

  49. @47: Is payment of blackmail illegal?

    Kevin M (1ea396)

  50. Is payment of blackmail illegal?

    Kevin M (1ea396) — 3/28/2023 @ 1:32 pm

    Payment of blackmail is not illegal, but recording it as a business or campaign expense (and especially if one lies about the purpose of the payment, like calling it “legal fees”) probably is.

    Rip Murdock (d2a2a8)

  51. Is payment of blackmail illegal?

    Kevin M (1ea396) — 3/28/2023 @ 1:32 pm

    Payment of blackmail is not illegal, but recording it as a business or campaign expense (and especially if one lies about the purpose of the payment, like calling it “legal fees”) probably is.

    Rip Murdock (d2a2a8) — 3/28/2023 @ 1:39 pm

    It used to be that you could deduct extortion payments from your taxes, but appears that loophole has been closed.

    Rip Murdock (d2a2a8)

  52. Or this:

    Manhattan prosecutors are focused on whether business records were falsified, one of the officials said. That could be charged as a low-level felony, or as a misdemeanor. It’s a misdemeanor for a person or company to make a false entry in a business record or cause one to be made, with intent to defraud. It becomes a felony if it is done to commit or conceal another crime.

    DRJ (0abb72)

  53. Cohen was convicted of “charges of tax evasion, making false statements to a federally-insured bank, and campaign finance violations.” The crime was not for paying hush money or extortion, it was for reporting it as something else.

    Presumably any charge against Trump would be for incorrect reporting (a misdemeanor) or for intentionally misreporting it (a felony).

    DRJ (0abb72)

  54. Michael Cohen covered up his payment to Stormy Daniels all on his own.

    What Donald Trump did was allow him to convert it into a loan (also illegal for Cohen) He just covered up why he was paying him.

    Donald Trump’s lawyer said on Meet the Press this Sunday that the prosecutors came in with an initial theory that he took a tax deduction for the payments but he did not (I think possibly they were saved from that because the 2017 tax return for the Trump Organization was filed after the payments became known)

    Sammy Finkelman (1d215a)

  55. Kevin M (1ea396) — 3/28/2023 @ 12:20 pm

    You still have not explained how payment can be both an illegal campaign donation AND not a legal campaign expense.

    Illegal for Michael Cohen to make, because his presumed motive was helping Trump win the 2016 election, but not illegal for Donald Trump to make because he had personal reasons.

    And Donald Trump didn’t make the or agree to the payments by the way – Robert Costello says Michael Cohen lied by claiming that Donald Trump approved the payments in advance. In addition MC claimed that Donald rump agreed that the 2016 was the reason.

    MC arranged for a confidential settlement to Stormy Daniels giving her $130,000 (negotiated down from $150,000) for her silence and who knows if maybe Donald Trump never signed it or even if perhaps MC forged Trump’s signature on the paper which identified DD as Donald Trump ) but Donald Trump did not pay it, and Stormy Daniels was threatening to go public again, and Michael Cohen paid the $130,000 using his own funds.

    It doesn’t make sense that he did that, but it also doesn’t make sense either the way he told the story, because if Donald Trump agreed to reimburse him why didn’t Michael Cohen at least secretly get that on tape?

    Sammy Finkelman (1d215a)

  56. Joe Tacopina bungled an answer:

    https://www.nbcnews.com/meet-the-press/meet-press-march-26-2023-n1303816

    CHUCK TODD:

    Alright, I do want to get you to respond to somebody who had a different point of view on this, and it was you a few years ago, let me play this sound and get you to respond.

    JOE TACOPINA:

    No.

    [BEGIN TAPE]

    JOE TACOPINA:

    Quite frankly, you know, Michael Cohen, again, has made statements that would give rise to suspicion for any prosecutor to say, ‘That doesn’t make sense that a lawyer took out a home equity loan, with his own money, paid somebody that he didn’t even know on behalf of a client, who, by the way, had to wherewithal and the money to afford $130,000, and by the way, didn’t tell the client about the settlement agreement.’ It’s an illegal agreement. It’s a fraud if that’s, in fact, the case.

    [END TAPE]

    CHUCK TODD:

    And I — and look we put the “if in fact, that’s the case.” ANd I understand –

    JOE TACOPINA:

    Did you hear that last line, Chuck?

    CHUCK TODD:

    I understand.

    JOE TACOPINA:

    Did you hear that last line?

    CHUCK TODD:

    No, no, no. I understand that. So what is it that you’ve learned about this case that changes your point of view?

    he should have said no.

    It doesn’t make sense.

    There are some unknown facts that would explain it.

    Sammy Finkelman (1d215a)

  57. * And Donald Trump didn’t make the or agree to the payments by the way – Robert Costello says Michael Cohen lied by claiming that Donald Trump approved the payments in advance. In addition MC claimed that Donald rump agreed that the 2016 election was the reason.

    But DT had been trying to hide these sorts of things for many years. And agreed with MC that aa reason to buy up all the National Enquirer stories was that David Pecker might get hit by a truck.

    After the election.

    I do agree that the fact the federal case was not prosecuted doesn’t mean there is no second crime.

    Sammy Finkelman (1d215a)

  58. You still have not explained how payment can be both an illegal campaign donation AND not a legal campaign expense.

    Kevin M (1ea396) — 3/28/2023 @ 12:20 pm

    I don’t understand your objection. They’re separate transactions, analyzed separately. Just because a gift to a campaign is illegal doesn’t mean the campaign doesn’t then have the money to spend illegally.

    Say I bribe a cop. Obviously illegal by both parties. Surely you don’t think that means the cop can’t be charged with additional crimes if he spends the bribe money on hookers and drugs.

    lurker (cd7cd4)

  59. Cohen’s conviction for bank fraud and tax evasion involved his taxi medallion businesses, which did not involve Trump.

    The campaign finance conviction did relate to Trump:

    The Federal Election Campaign Act of 1971, as amended, Title 52, United States Code, Section 30101, et seq., (the “Election Act”), regulates the influence of money on politics. At all relevant times, the Election Act set certain limitations and prohibitions, among them: (a) individual contributions to any presidential candidate, including expenditures coordinated with a candidate or his political committee, were limited to $2,700 per election, and presidential candidates and their committees were prohibited from accepting contributions from individuals in excess of this limit; and (b) Corporations were prohibited from making contributions directly to presidential candidates, including expenditures coordinated with candidates or their committees, and candidates were prohibited from accepting corporate contributions.

    On June 16, 2015, Individual-1 began his presidential campaign. While COHEN continued to work at the Company and did not have a formal title with the campaign, he had a campaign email address and, at various times, advised the campaign, including on matters of interest to the press, and made televised and media appearances on behalf of the campaign.

    In August 2015, the Chairman and Chief Executive of Corporation-1, a media company that owns, among other things, a popular tabloid magazine (“Chairman-1” and “Magazine-1,” respectively”), in coordination with COHEN and one or more members of the campaign, offered to help deal with negative stories about Individual-1’s relationships with women by, among other things, assisting the campaign in identifying such stories so they could be purchased and their publication avoided. Chairman-1 agreed to keep COHEN apprised of any such negative stories.

    Consistent with the agreement described above, Corporation-1 advised COHEN of negative stories during the course of the campaign, and COHEN, with the assistance of Corporation-1, was able to arrange for the purchase of two stories so as to suppress them and prevent them from influencing the election.

    First, in June 2016, a model and actress (“Woman-1”) began attempting to sell her story of her alleged extramarital affair with Individual-1 that had taken place in 2006 and 2007, knowing the story would be of considerable value because of the election. Woman-1 retained an attorney (“Attorney-1”), who in turn contacted the editor-in-chief of Magazine-1 (“Editor-1”), and offered to sell Woman-1’s story to Magazine-1. Chairman-1 and Editor-1 informed COHEN of the story. At COHEN’s urging and subject to COHEN’s promise that Corporation-1 would be reimbursed, Editor-1 ultimately began negotiating for the purchase of the story.

    On August 5, 2016, Corporation-1 entered into an agreement with Woman-1 to acquire her “limited life rights” to the story of her relationship with “any then-married man,” in exchange for $150,000 and a commitment to feature her on two magazine covers and publish more than 100 magazine articles authored by her. Despite the cover and article features to the agreement, its principal purpose, as understood by those involved, including COHEN, was to suppress Woman-1’s story so as to prevent it from influencing the election.

    Between late August 2016 and September 2016, COHEN agreed with Chairman-1 to assign the rights to the non-disclosure portion of Corporation-1’s agreement with Woman-1 to COHEN for $125,000. COHEN incorporated a shell entity called “Resolution Consultants LLC” for use in the transaction. Both Chairman-1 and COHEN ultimately signed the agreement, and a consultant for Corporation-1, using his own shell entity, provided COHEN with an invoice for the payment of $125,000. However, in early October 2016, after the assignment agreement was signed but before COHEN had paid the $125,000, Chairman-1 contacted COHEN and told him, in substance, that the deal was off and that COHEN should tear up the assignment agreement.

    Second, on October 8, 2016, an agent for an adult film actress (“Woman-2”) informed Editor-1 that Woman-2 was willing to make public statements and confirm on the record her alleged past affair with Individual-1. Chairman-1 and Editor-1 then contacted COHEN and put him in touch with Attorney-1, who was also representing Woman-2. Over the course of the next few days, COHEN negotiated a $130,000 agreement with Attorney-1 to himself purchase Woman-2’s silence, and received a signed confidential settlement agreement and a separate side letter agreement from Attorney-1.

    COHEN did not immediately execute the agreement, nor did he pay Woman-2. On the evening of October 25, 2016, with no deal with Woman-2 finalized, Attorney-1 told Editor-1 that Woman-2 was close to completing a deal with another outlet to make her story public. Editor-1, in turn, texted COHEN that “[w]e have to coordinate something on the matter [Attorney-1 is] calling you about or it could look awfully bad for everyone.” Chairman-1 and Editor-1 then called COHEN through an encrypted telephone application. COHEN agreed to make the payment, and then called Attorney-1 to finalize the deal.

    The next day, on October 26, 2016, COHEN emailed an incorporating service to obtain the corporate formation documents for another shell corporation, Essential Consultants LLC, which COHEN had incorporated a few days prior. Later that afternoon, COHEN drew down $131,000 from the fraudulently obtained HELOC and requested that it be deposited into a bank account COHEN had just opened in the name of Essential Consultants. The next morning, on October 27, 2016, COHEN went to Bank-3 and wired approximately $130,000 from Essential Consultants to Attorney-1. On the bank form to complete the wire, COHEN falsely indicated that the “purpose of wire being sent” was “retainer.” On November 1, 2016, COHEN received from Attorney-1 copies of the final, signed confidential settlement agreement and side letter agreement.

    COHEN caused and made the payments described herein in order to influence the 2016 presidential election. In so doing, he coordinated with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments. As a result of the payments solicited and made by COHEN, neither Woman-1 nor Woman-2 spoke to the press prior to the election.

    In January 2017, COHEN in seeking reimbursement for election-related expenses, presented executives of the Company with a copy of a bank statement from the Essential Consultants bank account, which reflected the $130,000 payment COHEN had made to the bank account of Attorney-1 in order to keep Woman-2 silent in advance of the election, plus a $35 wire fee, adding, in handwriting, an additional “$50,000.” The $50,000 represented a claimed payment for “tech services,” which in fact related to work COHEN had solicited from a technology company during and in connection with the campaign. COHEN added these amounts to a sum of $180,035. After receiving this document, executives of the Company “grossed up” for tax purposes COHEN’s requested reimbursement of $180,000 to $360,000, and then added a bonus of $60,000 so that COHEN would be paid $420,000 in total. Executives of the Company also determined that the $420,000 would be paid to COHEN in monthly amounts of $35,000 over the course of 12 months, and that COHEN should send invoices for these payments.

    On February 14, 2017, COHEN sent an executive of the Company (“Executive-1”) the first of his monthly invoices, requesting “[p]ursuant to [a] retainer agreement, . . . payment for services rendered for the months of January and February, 2017.” The invoice listed $35,000 for each of those two months. Executive-1 forwarded the invoice to another executive of the Company (“Executive-2”) the same day by email, and it was approved. Executive-1 forwarded that email to another employee at the Company, stating: “Please pay from the Trust. Post to legal expenses. Put ‘retainer for the months of January and February 2017’ in the description.”

    Throughout 2017, COHEN sent to one or more representatives of the Company monthly invoices, which stated, “Pursuant to the retainer agreement, kindly remit payment for services rendered for” the relevant month in 2017, and sought $35,000 per month. The Company accounted for these payments as legal expenses. In truth and in fact, there was no such retainer agreement, and the monthly invoices COHEN submitted were not in connection with any legal services he had provided in 2017.

    During 2017, pursuant to the invoices described above, COHEN received monthly $35,000 reimbursement checks, totaling $420,000.

    IMO the biggest problem the DA has is that Trump Financial Officer Weisselberg claimed he authorized the payments after getting prosecutorial immunity. If so, Trump ran a loose ship for a Wharton grad. If not, Trump has loyal people who will do anything for him.

    Apologies for the wall of text.

    DRJ (0abb72)

  60. Michael Cohen covered up his payment to Stormy Daniels all on his own.

    What Donald Trump did was allow him to convert it into a loan (also illegal for Cohen) He just covered up why he was paying him.

    Evidence?

    Rip Murdock (d2a2a8)

  61. The conviction was basically for fraudulent recordkeeping. It involved a federal campaign so the charges were pursuant to federal campaign law. Trumps charges, if any. Would be under NY State financial fraud laws.

    Weisselberg’s conviction was under federal and NY tax evasion and other laws. He testified against the Trump Organization in subsequent trials that resulted in convictions. He never testified against Trump or his children, and he remained on the Trump payroll including paying his legal fees.

    DRJ (0abb72)

  62. Say I bribe a cop. Obviously illegal by both parties. Surely you don’t think that means the cop can’t be charged with additional crimes if he spends the bribe money on hookers and drugs.

    I feel like I’m living in an alternate universe where3 words don’t mean what I think they mean.

    In this case the expenditure was not illegal, so “bribery” is a poor analogy. Or do you argue that paying extortion is illegal?

    For a third-party expenditure to be a campaign contribution, it has to be for something that the campaign could, if it had received the money instead, could legally pay for. Otherwise it is something else (a gift, a bribe, etc).

    There are things that one can personally pay for, like a new swimming pool, that using campaign funds for would be illegal, even if the campaign got some slight benefit from it.

    The prosecution’s argument was that the hush money payment (legal in and of itself) was of benefit to the campaign since a scandal of that sort would be harmful to Donald Trump. As if.

    Kevin M (1ea396)

  63. Was Cohen hiding an illegal campaign contribution, or was it the scandal that he was hiding? Frankly, I don’t think it even dawned on him that someone would consider it an illegal contribution, but it’s obvious that Trump and Cohen conspired to hide the blackmail payment because, well, blackmail.

    Kevin M (1ea396)

  64. To tell the truth DRJ, I feel like I’m talking to someone who just wants to use whatever reed he finds to go after Trump and is defending this weak one to the hilt.

    When in fact, going after Trump on this thing simply plays into his hands.

    Kevin M (1ea396)

  65. Cohen exceeded the campaign contribution limits and hid what he did. It doesn’t matter that he paid women to hide their stories. What matters is he did it to protect Trump and his campaign. Those were the illegalitiea.

    DRJ (0abb72)

  66. For a third-party expenditure to be a campaign contribution, it has to be for something that the campaign could, if it had received the money instead, could legally pay for. Otherwise it is something else (a gift, a bribe, etc).

    A contribution is anything of value given, loaned or advanced to influence a federal election.

    That says nothing about the lawfulness of what the campaign does or could have done with it.

    lurker (cd7cd4)

  67. Trumps argument has implicitly been that he wanted to hide the payment from Melania, so it was about the family and not the campaign. I could see that argument but for the timing of all this. He never seemed to care about his version of Clinton’s bimbo eruption until he was running for Presiddnt.

    DRJ (0abb72)

  68. To tell the truth DRJ, I feel like I’m talking to someone who just wants to use whatever reed he finds to go after Trump and is defending this weak one to the hilt.

    When in fact, going after Trump on this thing simply plays into his hands.

    OK. I accept that. I even said about it was not politically expedient to pursue thus.

    However, I also feel like I am talking to someone who doesn’t read other comments except to criticize them.

    DRJ (0abb72)

  69. Typos! I even said above it was not politically expedient to pursue this.

    DRJ (0abb72)

  70. To tell the truth DRJ, I feel like I’m talking to someone who just wants to use whatever reed he finds to go after Trump and is defending this weak one to the hilt.

    When in fact, going after Trump on this thing simply plays into his hands.

    Like DRJ I’m not a fan of Bragg bringing these charges for that very reason, and I said as much here just a few days ago. But not liking a prosecution doesn’t make it wrong on the merits. You’re asserting something categorically that to my eyes is anything but certain. If anything, based on the definition of “campaign contribution” alone, your assertion seems more likely wrong than right, but I wouldn’t bet a lot on that result either. Maybe courts have narrowed the definition consistent your argument. Are you aware of any such cases? If not, I just don’t know where you get your certainty.

    lurker (cd7cd4)

  71. When the Fulton County grand jury returns any indictments Trump’s defenders will say the same thing.

    Rip Murdock (d2a2a8)

  72. However, I also feel like I am talking to someone who doesn’t read other comments except to criticize them.

    Not so. I even read [most of] Pat’s post. It’s just that I don’t accept your argument (and I suspect you don’t accept mine).

    Kevin M (1ea396)

  73. If anything, based on the definition of “campaign contribution” alone, your assertion seems more likely wrong than right, but I wouldn’t bet a lot on that result either

    You may be right. My issue is not “what is a campaign contribution?” but whether something that is generally not considered legal for a campaign to do, can be called a “campaign contribution.” Now, maybe there is some overlap, but I sincerely doubt the matter at hand is codified as such.

    Kevin M (1ea396)

  74. I think Kevin is struggling with the same thing I am. How do you send the campaign finance violation to the jury? What will be the jury instruction? What will constitute a prima facie case (that’s the threshold for the prosecution)? Will there be a federal trial, with jury instructions based on federal law, within the state trial?

    nk (bb1548)

  75. Rip #71,

    the thing that frustrates me about the Fulton County is how long it is taking and the fact that the DA seems to want to put together a comprehensive RICO case involving the fake elector scheme, rather than just focusing on the apprent illegality that was known even before January 6 — Trump pressuring the Secretary of State to find votes for him on a recorded line. One thing I would love insight from our host about is why the Trump cases are taking so very long to prosecute.

    By the way, when folks do complain about the Fulton County case, you will know them.

    Appalled (03f53c)

  76. When the Fulton County grand jury returns any indictments Trump’s defenders will say the same thing.
    Rip Murdock (d2a2a8) — 3/28/2023 @ 5:43 pm

    Sarah Isgur doesn’t mention anything about political expediency. The ones bringing it up aren’t Trump defenders.

    JF (6e1937)

  77. @75

    Trump pressuring the Secretary of State to find votes for him on a recorded line.

    That’s the weakest argument that the GA prosecutor has imo.

    It’s the fake elector scheme having a stronger case they should be persuing.

    whembly (d116f3)

  78. Also, GA prosecutor has that grand jury going public problem too that may have just tanked the entire case.

    whembly (d116f3)

  79. Whembly,

    Georgia and the Feds have different standards regarding grand jury confidentiality. So, no, the case is not tanked. Though I expect Trump’s attorneys to make that argument.

    I just disagree about the other. And have a feeling that tying Trump directly to the fake electors will be tortured. Best to get the guy on what you can prove without doubt he did. The surrounding stuff goes to state of mind. (No, he did not misspeak)

    Appalled (07aff2)

  80. RICO was written for Trump, but prosecuting it is not for amateurs.

    Like I said right at the start, say what you want about Alvin Bragg, it was long past time that someone, anyone, stopped studying the dog mess on America’s sidewalk and picked up the garden hose.

    nk (bb1548)

  81. I think the John Edward’s jury instruction works:

    The government does not have to prove that the sole or only purpose of the money was to influence the election. People rarely act with a single purpose in mind. On the other hand, if the donor would have made the gift or payment notwithstanding the election, it does not become a contribution merely because the gift or payment might have some impact on the election. Nor does it become acontribution just because the donor knew it might have some influence on the election and found that acceptable, if the donor’s real purpose was personal or otherwise unrelated to the election. In other words, the government has to prove that Ms. Mellon had a real purpose or an intended purpose to influence an election. in making the gift or payment. If her real purpose was personal or otherwise not for the purpose of influencing the election, or if you cannot say what the purpose was beyond a reasonable doubt, then that would not be sufficient to satisfy this element. If you find beyond a reasonable doubt that one of her purposes was to influence an election, then that would be sufficient.

    DRJ (0abb72)

  82. In the Trump drama, the part of “Ms Mellon” could be played by Michael Cohen — but he is damaged goods because of his inconsistent statements about who authorized the payments.

    So why not use David Pecker instead? He and his company cooperated from the get go, and can show a pattern with McDougal and Daniel’s– plus that Trump said he needed it for his campaign, not to protect Melania.

    If the DA didn’t lay behind the log on thus, and maybe he didn’t, it still a great play.

    DRJ (0abb72)

  83. Also, GA prosecutor has that grand jury going public problem too that may have just tanked the entire case.

    whembly (d116f3) — 3/29/2023 @ 7:14 am

    The grand jurors that have spoken out are not the same ones that will issue any indictments. The “special grand jury” under Georgia law has only investigative powers. A regular grand jury would issue any indictments based on their report.

    Rip Murdock (d2a2a8)

  84. I even read [most of] Pat’s post. It’s just that I don’t accept your argument (and I suspect you don’t accept mine.

    I didn’t accept your argument that convictions obtained by guilty pleasure are not evidence of real guilt. I didn’t accept your argument that laws that aren’t prosecuted often or are new should not be treated as real convictions when pursuing co-conspirators.

    But I have engaged the points you’ve made, acknowledged your concerns, and agreed with your political point about this prosecution. You just keep stating your opinion over and over, without ever appearing to read the facts I linked about the legal matters.

    So I’ve done all I can to further this discussion. As you said, you don’t accept anyone’s argument but your own.

    DRJ (0abb72)

  85. Guilty pleas, not guilty pleasure. What an interesting auto-correct!

    DRJ (0abb72)

  86. I have to ask: Why didn’t you read all of Pattericos’ posts? If you don’t agree, don’t you owe it to him to understand his point?

    DRJ (0abb72)

  87. Guilty pleas, not guilty pleasure. What an interesting auto-correct!

    “stormy-daniels-trump” in the hyperlink? Perfectly natural that the AI would guess that.

    nk (bb1548)

  88. True. How funny.

    DRJ (0abb72)

  89. DRJ (0abb72) — 3/29/2023 @ 8:51 am

    So why not use David Pecker instead? He and his company cooperated from the get go, and can show a pattern with McDougal and Daniel’s– plus that Trump said he needed it for his campaign,

    I believe Pecker’s story is that he asked how the National Enquirer could help his campaign, and Trump said by buying up and killing (more) stories from women who said he had intercourse with them.

    not to protect Melania.

    I wouldn’t expect that to be as motive. You could say his son in school, but it would be to protect himself in general.

    The National Enquirer had previously run the Ted Cruz father story – but I suppose they didn’t spend any money on that – Roger Stone fed that to them I think.

    Sammy Finkelman (1d215a)

  90. DRJ (0abb72) — 3/28/2023 @ 11:00 am

    Cohen did the dirty work

    If Michael Cohen paid the money on his own, it was an independent expenditure and not required to be reported to the FEC.

    but Trump authorized it

    To involve Trump in a criminal violation, Cohen has had to claim not only that Trump authorized it (and why would Trump expect Cohen to pay the money himself?) but that Trump had agreed with Cohen that the purpose was to help his campaign.

    And if Trump agreed in advance for Cohen to be reimbursed, then why didn’t Cohen at least tape record it? And he didn’t because he has never claimed he did. And why would Trump care so much – and if it was a legitimate campaign expense, then why not use campaign funds?

    Just one more question, said Columbo…

    and covered it up.

    No crime to cover up unless the payment to Stormy Daniels was coordinated in advance with Trump.

    And if so, no need to consider that Trump was covering up Michael Cohen’s crime. It’s either Trump’s crime too or there’s no crime.

    It isn’t helpful to the system or society to punish the little fish and let the big fish swim on.

    Trump disputes Michael Cohen’s “confession.”

    And it would be an odd thing either for Cohen to pay the money on his own or for Trump to expect MC to lay out the money.

    That’s totally unreasonable.

    Sammy Finkelman (1d215a)

  91. It’s either Trump’s crime too or there’s no crime.

    Well, Trump’s motive could be different than Cohen’s, but for Cohen, a personal motive is less likely than an election motive, but it could still be non-election related if, say, he was lying to Trump and wanted to conceal that fact by making the payment himself..

    Sammy Finkelman (1d215a)


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