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

Thu Aug 23 18:27:23 PDT 2018

My take was in the Washington Post this morning. For anyone interested, the link is https://www.washingtonpost.com/opinions/those-payments-to-mistresses-were-unseemly-that-doesnt-mean-they-were-illegal/2018/08/22/634acdf4-a63b-11e8-8fac-12e98c13528d_story.html?utm_term=.2fdad3abe60f

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: Law-election [law-election-bounces at department-lists.uci.edu] on behalf of Roberts, Brian E [roberts at utexas.edu]
Sent: Thursday, August 23, 2018 9:55 AM
To: Election Law Listserv
Subject: Re: [EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”

Isn’t this discussion moot?  No one, least of all Donald Trump, thought he would actually win the election, so clearly these payments were not meant to sway the election outcome.  :- )

In fact, then, it would become a campaign finance legal issue if campaign funds actually had been used to address concerns solely of personal reputation.

Brian Roberts
University of Texas

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Fredric Woocher
Sent: Wednesday, August 22, 2018 8:31 PM
To: Mark Scarberry <mark.scarberry at pepperdine.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”

Mark,

Why are you struggling to put such a benign face on this, with all of your hypotheticals about whether this would be legal if Trump “promptly reimbursed” the Organization or the campaign for these expenditures?  He didn’t.  Trump doesn’t pay for anything out of his own pocket, even when he is legally obligated to do so, much less when he is trying to cover it up.  The Information makes clear that the Trump Organization made the reimbursements to Cohen through phony “retainer” payments over the course of two years, well after the expenses were incurred by Cohen.

Fredric D. Woocher
Strumwasser & Woocher LLP
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA 90024
fwoocher at strumwooch.com<mailto:fwoocher at strumwooch.com>
(310) 576-1233
From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mark Scarberry
Sent: Wednesday, August 22, 2018 2:20 PM
To: Election Law Listserv
Subject: Re: [EL] “Michael Cohen’s Guilty Plea Directly Implicates Donald Trump in a Felony”

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<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.documentcloud.org%2fdocuments%2f4779531-Information-Felony.html&c=E,1,27Z-hPbfppPbVV0oVUyJmS-pjqtcigoZ0EUO0IiKH0X-u-rvnGRkakPJPBtFpXNYOCtvSn9ZxyrtB0uHlt6qQ-GWdtR4TSGbe5NgYV_3dC-JvamUdMc,&typo=1>.

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<mailto:adam at boninlaw.com>> wrote:
The felony information is here: https://www.documentcloud.org/documents/4779531-Information-Felony.html<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.documentcloud.org%2fdocuments%2f4779531-Information-Felony.html&c=E,1,R3Z67lis6sQDKlAEyAy0uDjp4nMmQVuhDsHC96ekY_aqPV9rAk4hpbOsQEPRQVGWqTpYggdOkP8_qXaxVHKNqzfeqFFLROwdOPiofBb-LwKEkmdm4w70sp0,&typo=1>

Adam C. Bonin
The Law Office of Adam C. Bonin
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