Although Tuesday was not a great day for President Trump, it wasn’t the TKO that Robert Mueller was hoping for either. The most damaging event of the day, the one the left is currently running away with, was the announcement of Michael Cohen’s plea deal. Trump’s former personal attorney pleaded guilty to eight counts of bank and tax fraud and violations of campaign finance laws.
- Five counts of tax evasion
- One count of making false statements to a financial institution
- One count of willfully causing an unlawful corporate contribution
- One count of making an excessive campaign contribution at the request of a candidate or campaign
Cohen would face up to 65 years in jail if convicted on all counts. His plea deal limits his time served to five years and three months.
The potential violations of campaign finance laws concern the hush money paid to porn star Stormy Daniels and to playboy model Karen McDougal which Cohen states was done at the direction of the President, to influence the outcome of an election. This is the crime on which Mueller hopes to derail Trump’s presidency. Were these payments made to influence the outcome of an election? Opinion is divided along party lines and this issue will be hotly debated.
CNN’s headline after the story broke read: “Two courtroom dramas leave Trump’s presidency on a cliffhanger.”
Sen. Richard Blumenthal (D-CT), appearing on CNN, said, “We are in a Watergate moment. We need bipartisanship now more than ever to protect the special counsel and to stop, and I must underscore stop, any consideration of pardons.” This from a man who lied for years about his military service.
Stormy Daniel’s attorney, Michael Avenatti, also appeared on CNN saying:
“It is clear as day that Trump’s fingerprints are all over the crime scene…We’re going to march forward with our efforts to place the President under oath and get a deposition where I’m going to be able to ask him questions and he’s going to be forced to answer those questions under oath about his own conduct…[Avenatti said he] is going to get to the bottom of what the President knew, and when he knew it and what he did about it and the details of this cover-up.”
Cohen’s attorney, Clinton ally Lanny Davis, asked: “If those payments were a crime for Michael Cohen, then why wouldn’t they be a crime for Donald Trump?”
The important question is: Are these payments a crime?
George Washington professor Jonathan Turley said that Trump could be an “unindicted co-conspirator” in this case.
Lawyer and political analyst Mark Levin said not so fast.
“The media are excited about the Michael Cohen guilty plea deal and yet, they don’t know what they’re talking about. This is a guilty plea, not an adjudication. It’s a plea bargain, not a precedent. They obviously had more on Michael Cohen, or he wouldn’t have cut a deal. If a candidate chooses to make a settlement with someone or to have them sign a nondisclosure agreement, that is not illegal. For example, let’s say a candidate says, ‘Get a nondisclosure agreement, pay the funds out of my pocket, because I don’t want this person to attack me during the campaign for something that occurred before the campaign.’ That’s perfectly legal. That’s not a campaign expenditure.
Then, Bradley Smith, former Chairman of the Federal Election Commission, explains the facts of the Cohen plea agreement. “Things not related to running a campaign are not campaign expenditures, they are personal expenditures. Even if paying someone to go away might potentially help your campaign, such an expense made with non-campaign funds is not a campaign contribution.”
Powerline’s Paul Mirengoff, also a lawyer, said, “the fact that Cohen entered this guilty plea doesn’t mean he actually broke campaign finance laws. There is a substantial argument that the payments to Stormy Daniels and the other woman weren’t crimes.”
He also cites Bradley Smith:
“Election law expert Bradley Smith, among others, maintains that paying hush money to silence people with potentially damaging information on a political candidate does not constitute a campaign contribution. In my view, this is a murky area of the law.
Cohen simply decided not to contest the campaign finance count against him in order to avoid major prison time for violations he apparently couldn’t plausibly contest — tax evasion and bank fraud. These are violations that, unlike the election law count, carry severe sentences.”
What is clear is that whether or not the payments were illegal is subjective, and would be impossible to prove beyond a reasonable doubt. It can and will be debated ad nauseum in the coming months.
Even if the payments were found to be a campaign violation, the penalties for campaign violations are generally minimal. Often, the violator will be fined.
The most recent information I found on penalties for campaign violations and illegal campaign contributions can be viewed here.
The maximum penalty was 200% of the unlawful contribution. I’m not saying that Trump’s hush money to Daniels or McDougal was unlawful or even a campaign contribution. However, if a future jury decided they were either or both, Trump would pay a maximum fine of $560,000.
Obama was found to have violated campaign finance laws during his 2008 campaign and was fined $375,000 by the Federal Election Commission. The campaign had failed to disclose the sources of $1.9 million of donations. Also, the violations took place in 2008 and the penalty was announced in January 2013.
This latest episode is an attempt by Robert Mueller & Co. to do what he does so well – what he has done so many times over his lengthy career in law enforcement. Because he has not found evidence of Trump/Russia collusion in the last fifteen months, nor did the FBI find evidence in their prior counterintelligence investigation, he has “created” an alternate crime.
He will write up a damning report and offer this to House Democrats hoping that they will win the majority in November and can use it as the basis for initiating impeachment proceedings against Trump. If they could use an uncorroborated dossier as the basis for obtaining surveillance warrants from a FISA court judge, it should be no surprise that a report with unprovable, nebulous charges would provide the basis for impeachment.
The bottom line is that none of this has anything to do with Russian Collusion, which was why the special counsel was appointed.
The consensus, as I see it, is this latest development is more likely to cause political problems, not legal problems for Trump.
I guess Michael Cohen decided that, after thinking about things, he couldn’t take a bullet for Donald Trump after all.
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