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

Wed Aug 22 12:36:22 PDT 2018

The felony information is here:
https://www.documentcloud.org/documents/4779531-Information-Felony.html

Adam C. Bonin
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On Wed, Aug 22, 2018 at 3:01 PM, Mark Scarberry <
mark.scarberry at pepperdine.edu> wrote:

> 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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