[EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”

Wed Aug 22 12:01:29 PDT 2018

I haven't been able to keep up on all of this, but I gather the alleged
crime is failure to disclose the payments, rather than the actual making of
the payments, which may not have been a crime. Is that right?

Focusing only on the question whether the making of the payments may have
been a crime to which Cohen pled guilty:

If Trump instructed Cohen to make the payments as his agent (with the
promise of reimbursement that is inherent in the agency relationship and
perhaps was made explicitly), the payments would be permissible candidate
expenditures (even if treated as campaign expenditures) under Buckley,
wouldn't they? Campaign expenditures are always or almost always done
through agents, aren't they, like advertising agencies that create and
place ads? Must a candidate prepay the agents?

Or is there an argument that these were expenditures made by Cohen, not as
Trump's agent, but on his own and coordinated with Trump as a candidate?

A federal judge has an obligation, I think, before accepting a guilty plea,
to hear from the defendant a statement of the facts that support the plea.
For an interesting discussion of the lawyer's obligations, see
https://www.stroock.com/siteFiles/Pub1021.pdf (which begins with a
discussion of guilty pleas entered by innocent defendants in foreign
countries). If I'm right, does the judge also have an obligation to
consider whether the facts that are admitted actually show that the
defendant committed a crime (i.e., that the payments were illegal campaign
expenditures or that failure to disclose was a crime)?

Put another way, can a defendant plead guilty to a crime on the basis of
admitted facts that do not constitute the crime?

Sorry for not being more up-to-date (and certainly not being conversant
with federal criminal practice). Perhaps these questions are nevertheless
of general interest.

Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law

On Wed, Aug 22, 2018 at 8:15 AM, David A. Holtzman <d at lavotefire.org> wrote:

> It wouldn't be "hush money" if it were disclosed.
>   - dah
> --
>
> On August 22, 2018 10:36:27 "Foley, Edward" <foley.33 at osu.edu> wrote:
>
>> Rick & list members,
>>
>>
>>
>> Am I correct that the “hush money” payments themselves would not have
>> been criminal conduct IF (1) made from the campaign itself using money
>> received in compliance with contribution limits and (2) disclosed as
>> campaign-related expenses?
>>
>>
>>
>> If so, I’m trying to evaluate whether Trump’s own culpability as alleged
>> by Cohen should rise to the level of an impeachable “high crime or
>> misdemeanor”.   In other word, if it ever comes to that, what should
>> Senator Rob Portman (for example) do, on the facts as stated by Cohen
>> yesterday if made the basis of an impeachment count by the House (assuming
>> that Senator Portman endeavors to do the right thing under the
>> Constitution, as some Republican Senators did in my judgment in acquitting
>> Andrew Johnson even though they had the raw power to remove him)?
>>
>>
>>
>> Presumably, some campaign finance violations—even if intentionally
>> criminal—do not rise to the level of impeachable offenses.  Assume a
>> situation in which no “hush money” payments were involved, but a
>> presidential candidate intentionally conspired with a wealthy donor to
>> receive a contribution in excess of the statutory limits, and also the
>> intentional conspiracy involved an effort to hide the illegally excessive
>> contribution from the FEC.  Would that be enough to warrant removing the
>> elected president from office?
>>
>>
>>
>> Does the Senate’s decision not to remove Bill Clinton from office count
>> as a relevant “precedent” in this context?  To be sure, criminality in an
>> effort to sway an election seems constitutionally more problematic (in my
>> judgment) than criminality in an effort to protect one’s personal
>> reputation (as arguably was the nature of Bill Clinton’s criminality).
>> Especially because there is no mechanism to remove a president other than
>> impeachment if there was criminally improper interference with the
>> electorate’s choice on which candidate should win, I think an
>> election-related crime should count more significantly for impeachment
>> purposes than at least some other types of crimes.  Even so, it is not
>> obvious to me that every election-related crime committed by a presidential
>> candidate should automatically be viewed as a sufficient basis for
>> impeachment and removal from office.
>>
>>
>>
>> Any input as I endeavor to think this through?  Thanks, Ned
>>
>>
>>
>> [image: The Ohio State University]
>> *Edward B. Foley *
>> Director, *Election Law @ Moritz *
>> Charles W. Ebersold and Florence Whitcomb Ebersold Chair in
>> Constitutional Law
>>
>> Moritz College of Law
>> 614-292-4288
>>
>>
>>
>> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
>> Behalf Of *Rick Hasen
>> *Sent:* Tuesday, August 21, 2018 8:23 PM
>> *To:* Election Law Listserv <law-election at uci.edu>
>> *Subject:* [EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald
>> Trump in a Felony”
>>
>>
>> “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”
>> <https://electionlawblog.org/?p=100738>
>>
>> Posted on August 21, 2018 5:22 pm <https://electionlawblog.org/?p=100738>
>>  by *Rick Hasen* <https://electionlawblog.org/?author=3>
>>
>> I have written this piece
>> <https://slate.com/news-and-politics/2018/08/michael-cohens-guilty-plea-directly-implicates-donald-trump-in-a-felony.html> for
>> Slate. It begins:
>>
>> *For the first time since the Trump presidency began, President Donald
>> Trump is in some real legal jeopardy, providing potential grounds for his
>> eventual impeachment, if not indictment.*
>>
>> *Most people watching the investigations involving Trump and his orbit
>> have been focused on whether Special Counsel Robert Mueller is going to
>> bring charges related possible illegal coordination between the 2016 Trump
>> presidential campaign and Russian government entities. But Tuesday brought
>> news of a different kind of campaign collusion: between Trump and his
>> personal lawyer, Michael Cohen. Cohen’s guilty plea to campaign finance
>> violations related to hush money payments to porn actress Stormy Daniels
>> and former Playboy Playmate Karen McDougal bring the president front and
>> center in a conspiracy to violate federal campaign finance laws.*
>>
>>
>>
>> [image: Share]
>> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100738&title=%E2%80%9CMichael%20Cohen%E2%80%99s%20Guilty%20Plea%20Directly%20Implicates%20Donald%20Trump%20in%20a%20Felony%E2%80%9D>
>>
>> Posted in campaign finance <https://electionlawblog.org/?cat=10>,
>> campaigns <https://electionlawblog.org/?cat=59>, chicanery
>> <https://electionlawblog.org/?cat=12>
>>
>>
>>
>>
>>
>> --
>>
>> Rick Hasen
>>
>> Chancellor's Professor of Law and Political Science
>>
>> UC Irvine School of Law
>>
>> 401 E. Peltason Dr., Suite 1000
>>
>> Irvine, CA 92697-8000
>>
>> 949.824.3072 - office
>>
>> rhasen at law.uci.edu
>>
>> http://www.law.uci.edu/faculty/full-time/hasen/
>>
>> http://electionlawblog.org
>>
>> [image:
>> /Users/rhasen/Library/Containers/com.microsoft.Outlook/Data/Library/Caches/Signatures/signature_64374683]
>>
>>
>>
>>
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>
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