Absent smoking gun, media still rushing to implicate Trump via Cohen memos

In August 2018, Michael Cohen entered a guilty plea and admitted to violating campaign finance laws by arranging hush-money payments under the direction of an "unnamed candidate."  Four months later, Robert Mueller and the Special Prosecutor's Office for the Southern District of New York submitted several memos dealing with alleged Russian collusion, obstruction, and campaign illegalities. Despite all of the media hoopla, the memos did not disclose anything new that definitively established a campaign finance violation against the president.

According to CNN, prosecutors from the Manhattan U.S. attorney's office wrote: "In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1."  Individual-1 is the term prosecutors have been using to refer to the president.  As Andy McCarthy pointed out in a recent Fox News article, while a candidate may spend as much as he wants on his campaign, he must report the amount spent to the Federal Election Commission. Also, in 2016, contributors like Cohen were limited to $2,700 in donations.  With regard to the first count involving Karen McDougal, McCarthy stated:

The sentencing memo for Cohen argues that the hush money payments were not merely unreported. It states that Cohen and the Trump organization – the president's company – went to great lengths to conceal them by fraudulent bookkeeping.

Equally significantly, Cohen was not charged with merely making illegal donations.  He was charged in the first campaign finance count with causing a company to make illegal donations.

Cohen, therefore, pleaded guilty not to making his own excessive contribution but to causing a third party to make an illegal contribution.

Cohen says he was operating at Trump's direction.  Logically, then, if this is true and Cohen caused the third-party illegal contribution, so did the president.

Per McCarthy, the second campaign finance charge involving Stormy Daniels involved similar issues.  More particularly, if President Trump directed Cohen to make an illegal contribution or expenditure, this could be problematic for the president.    

Some of this information is not new.  Cohen admitted in August to committing campaign finance violations.  His assertion that he acted in coordination with and at the direction of the president is uncorroborated, and the memos failed to provide any independent evidence to substantiate Cohen's claims other than Cohen's own assertions.  In a recent article in LifeZette, former U.S. attorney Joseph diGenova stated that "what we learned" from Friday's filings "was that there's no evidence, again, of Russian collusion with the Trump campaign, and certainly nothing with the president personally."

We learned that Michael Cohen is a kind of rather unscrupulous individual who sought to enrich himself through the campaign and did some pretty sleazy deals after the campaign ... [b]ut, in fact, there is no suggestion whatsoever that the president did anything wrong, committed any crimes or certainly had any contact with Russians.

  Cohen's words should be taken in the proper context.  First, Cohen has very little credibility.  For example, in February, Cohen told the New York Times that "[n]either the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly."  This statement directly contradicts his most recent statements.  Moreover, according to CNN, the recently filed memos referenced the fact that Cohen lied about a variety of issues.  As a result, federal prosecutors in New York indicated that Cohen should receive a substantial prison sentence for tax fraud and campaign finance crimes.  Now, despite the repeated claims that Cohen has been untruthful, Mueller and federal prosecutors in New York expect people to believe his most recent statements?  Assuming that they do not have any additional and credible corroborating evidence, this is unlikely.          

More importantly, the memos failed to include any corroboration that the president intended to commit a campaign finance violation, which would be required in any subsequent prosecution.  (Even if this is established, there remains a legitimate question as to whether a sitting president can be indicted).  As diGenova explained, there is a difference between hush money to keep the president in a good light with his wife and business colleagues and hush money "to further the campaign." While Mueller could have additional evidence to support this claim, the memos are devoid of any such evidence.     

Several other points are noteworthy.  According to Mark Levin, "[a] campaign expenditure must be solely for a campaign activity.  It must come from a campaign activity, not an activity that occurred before a campaign.  A candidate who spends his own money or even corporate money for an event that occurred not as a result of the campaign is not making a campaign expenditure."

Per Mr. Levin, it is not a campaign expenditure if a candidate tells his lawyer to obtain a non-disclosure agreement and offers to pay the funds out of the candidate's own pocket so "Mrs. X" doesn't attack the candidate for something that happened before the campaign.

Another example cited by Mr. Levin involves a person running for Senate.  During the campaign, someone accuses the candidate of something and threatens to ruin his campaign.  If the candidate tells his lawyer to obtain a non-disclosure agreement and agrees to pay out of his own pocket or out of corporate funds to keep the threat quiet, that does not constitute a campaign expenditure.  If, on the other hand, the "hush money" was paid from campaign funds that were being raised, that would be illegal.

While the recent memos provided some additional insight regarding Cohen's and Paul Manafort's "misdeeds," they did not appear to include any "smoking gun" against the president.  One of the main items missing is that Trump knew that such payments are illegal, which would be a necessary showing.  There is also no verification or corroboration that Trump directed Cohen to make such payments.  Time will tell if Mueller or N.Y. prosecutors have additional information that has yet to be disclosed to support their claims.  Until then, if Congressional Democrats attempt to impeach President Trump solely on the word of Michael Cohen, they will likely face stiff resistance from their Republican friends.

Mr. Hakim is a writer, commentator, and attorney.  His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, American Thinker, and other online publications.

https://thoughtfullyconservative.wordpress.com

Twitter: @ThoughtfulGOP

Image: James Ledbetter via Flickr.

In August 2018, Michael Cohen entered a guilty plea and admitted to violating campaign finance laws by arranging hush-money payments under the direction of an "unnamed candidate."  Four months later, Robert Mueller and the Special Prosecutor's Office for the Southern District of New York submitted several memos dealing with alleged Russian collusion, obstruction, and campaign illegalities. Despite all of the media hoopla, the memos did not disclose anything new that definitively established a campaign finance violation against the president.

According to CNN, prosecutors from the Manhattan U.S. attorney's office wrote: "In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1."  Individual-1 is the term prosecutors have been using to refer to the president.  As Andy McCarthy pointed out in a recent Fox News article, while a candidate may spend as much as he wants on his campaign, he must report the amount spent to the Federal Election Commission. Also, in 2016, contributors like Cohen were limited to $2,700 in donations.  With regard to the first count involving Karen McDougal, McCarthy stated:

The sentencing memo for Cohen argues that the hush money payments were not merely unreported. It states that Cohen and the Trump organization – the president's company – went to great lengths to conceal them by fraudulent bookkeeping.

Equally significantly, Cohen was not charged with merely making illegal donations.  He was charged in the first campaign finance count with causing a company to make illegal donations.

Cohen, therefore, pleaded guilty not to making his own excessive contribution but to causing a third party to make an illegal contribution.

Cohen says he was operating at Trump's direction.  Logically, then, if this is true and Cohen caused the third-party illegal contribution, so did the president.

Per McCarthy, the second campaign finance charge involving Stormy Daniels involved similar issues.  More particularly, if President Trump directed Cohen to make an illegal contribution or expenditure, this could be problematic for the president.    

Some of this information is not new.  Cohen admitted in August to committing campaign finance violations.  His assertion that he acted in coordination with and at the direction of the president is uncorroborated, and the memos failed to provide any independent evidence to substantiate Cohen's claims other than Cohen's own assertions.  In a recent article in LifeZette, former U.S. attorney Joseph diGenova stated that "what we learned" from Friday's filings "was that there's no evidence, again, of Russian collusion with the Trump campaign, and certainly nothing with the president personally."

We learned that Michael Cohen is a kind of rather unscrupulous individual who sought to enrich himself through the campaign and did some pretty sleazy deals after the campaign ... [b]ut, in fact, there is no suggestion whatsoever that the president did anything wrong, committed any crimes or certainly had any contact with Russians.

  Cohen's words should be taken in the proper context.  First, Cohen has very little credibility.  For example, in February, Cohen told the New York Times that "[n]either the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly."  This statement directly contradicts his most recent statements.  Moreover, according to CNN, the recently filed memos referenced the fact that Cohen lied about a variety of issues.  As a result, federal prosecutors in New York indicated that Cohen should receive a substantial prison sentence for tax fraud and campaign finance crimes.  Now, despite the repeated claims that Cohen has been untruthful, Mueller and federal prosecutors in New York expect people to believe his most recent statements?  Assuming that they do not have any additional and credible corroborating evidence, this is unlikely.          

More importantly, the memos failed to include any corroboration that the president intended to commit a campaign finance violation, which would be required in any subsequent prosecution.  (Even if this is established, there remains a legitimate question as to whether a sitting president can be indicted).  As diGenova explained, there is a difference between hush money to keep the president in a good light with his wife and business colleagues and hush money "to further the campaign." While Mueller could have additional evidence to support this claim, the memos are devoid of any such evidence.     

Several other points are noteworthy.  According to Mark Levin, "[a] campaign expenditure must be solely for a campaign activity.  It must come from a campaign activity, not an activity that occurred before a campaign.  A candidate who spends his own money or even corporate money for an event that occurred not as a result of the campaign is not making a campaign expenditure."

Per Mr. Levin, it is not a campaign expenditure if a candidate tells his lawyer to obtain a non-disclosure agreement and offers to pay the funds out of the candidate's own pocket so "Mrs. X" doesn't attack the candidate for something that happened before the campaign.

Another example cited by Mr. Levin involves a person running for Senate.  During the campaign, someone accuses the candidate of something and threatens to ruin his campaign.  If the candidate tells his lawyer to obtain a non-disclosure agreement and agrees to pay out of his own pocket or out of corporate funds to keep the threat quiet, that does not constitute a campaign expenditure.  If, on the other hand, the "hush money" was paid from campaign funds that were being raised, that would be illegal.

While the recent memos provided some additional insight regarding Cohen's and Paul Manafort's "misdeeds," they did not appear to include any "smoking gun" against the president.  One of the main items missing is that Trump knew that such payments are illegal, which would be a necessary showing.  There is also no verification or corroboration that Trump directed Cohen to make such payments.  Time will tell if Mueller or N.Y. prosecutors have additional information that has yet to be disclosed to support their claims.  Until then, if Congressional Democrats attempt to impeach President Trump solely on the word of Michael Cohen, they will likely face stiff resistance from their Republican friends.

Mr. Hakim is a writer, commentator, and attorney.  His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, American Thinker, and other online publications.

https://thoughtfullyconservative.wordpress.com

Twitter: @ThoughtfulGOP

Image: James Ledbetter via Flickr.