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

[Mark Scarberry]

As Adam helpfully noted, the federal felony "Information" setting out the
charges against Cohen can be found here:

https://www.documentcloud.org/documents/4779531-Information-Felony.html.

Here are some comments, based on an initial reading (and repeating some of
what I said in an earlier post). I hope I have understood the information
correctly. Others may be able to correct any mistakes.

Counts 1-5 are tax evasion. Count 6 is for defrauding banks. As far as I
can tell, these counts are unrelated to Pres. Trump or his campaign.

Count 7 is for causing a corporation to make, in effect, an illegal
contribution to Pres. Trump's campaign by paying hush money.

Count 8 is a charge that Cohen himself made a contribution to the campaign
in excess of the statutory limits on contributions, by paying hush money
"in cooperation, consultation, and concert with, and at the request and
suggestion of one or more members of the campaign."

I need to read the information again more carefully, but I think only Count
8 involves alleged involvement of the campaign (beyond Cohen's own role in
the campaign). I also don't think there is an allegation that any failure
to disclose any of these matters was a crime.

I wonder whether Counts 7 and 8 are sustainable if the corporation or Cohen
acted as Trump's agent in making payments and then received prompt
reimbursement from Trump, or from campaign funds legally raised by the
campaign. I don't remember whether Trump has admitted making such
reimbursements.

Campaign expenses are generally, I think, incurred by agents, including
corporations, such as ad agencies, with reimbursement expected either under
agency law or pursuant to an express promise of reimbursement. I don't
think a promptly reimbursed expenditure by an agent should be treated as a
loan, but I could be wrong (as I often am). If the candidate promptly
reimburses the agent, I think Buckley protects the expenditure and
reimbursement. If the campaign reimburses the agent with properly raised
campaign funds, it also seems that there is no crime. If Trump did
reimburse these expenditures, but not promptly, I suppose we could say that
the agent made a loan. I suppose that for Cohen or the corporation to be an
agent, they would have had to act with Trump's authorization; I don't know
whether that was the case.

Again, this is based on a first-reading of the information and my perhaps
idiosyncratic reading of the law..

Mark

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

On Wed, Aug 22, 2018 at 12:36 PM, Adam Bonin <adam at boninlaw.com> wrote:

> The felony information is here: https://www.documentcloud.org/documents/
> 4779531-Information-Felony.html
>
>
>
> Adam C. Bonin
> The Law Office of Adam C. Bonin
> 121 S. Broad Street, Suite 400
> <https://maps.google.com/?q=121+S.+Broad+Street,+Suite+400+Philadelphia,+PA%C2%A0+19107&entry=gmail&source=g>
> Philadelphia, PA  19107
> <https://maps.google.com/?q=121+S.+Broad+Street,+Suite+400+Philadelphia,+PA%C2%A0+19107&entry=gmail&source=g>
>
> (267) 242-5014 (c)
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> adam at boninlaw.com
> http://www.boninlaw.com
>
>
>
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