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

Fri Aug 24 06:56:57 PDT 2018

CLC’s Trevor Potter has this piece in the Post as well this morning, which
addresses some of Mr. Smith’s arguments:

https://www.washingtonpost.com/amphtml/outlook/2018/08/24/trump-says-michael-cohen-didnt-commit-crimes-hes-wrong/

This op-ed from earlier this year also remains relevant:

https://www.washingtonpost.com/amphtml/news/posteverything/wp/2018/05/04/the-point-of-paying-stormy-daniels-was-to-keep-voters-from-hearing-her-story/

On Fri, Aug 24, 2018 at 8:22 AM Smith, Brad <BSmith at law.capital.edu> wrote:

> I'm told the link below was broken. Don't know why that would be so, but
> here is link to Reason piece, again.
> https://reason.com/archives/2018/08/23/trumps-campaign-finance-catch-22
>
>
>
> *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
> <http://law.capital.edu/faculty/bios/bsmith.aspx>*
> ------------------------------
> *From:* Law-election [law-election-bounces at department-lists.uci.edu] on
> behalf of Smith, Brad [BSmith at law.capital.edu]
> *Sent:* Thursday, August 23, 2018 9:29 PM
>
> *To:* Election Law Listserv
> *Subject:* Re: [EL] “Michael Cohen’s Guilty Plea Directly Implicates
> Donald Trump in a Felony”
>
> I also published a piece on the issue at Reason:
> https://reason.com/archives/2018/08/23/trumps-campaign-finance-catch-22.
>
> Brad
>
> *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
> <http://law.capital.edu/faculty/bios/bsmith.aspx>*
> ------------------------------
> *From:* Smith, Brad
> *Sent:* Thursday, August 23, 2018 9:27 PM
> *To:* Election Law Listserv
> *Subject:* RE: [EL] “Michael Cohen’s Guilty Plea Directly Implicates
> Donald Trump in a Felony”
>
> 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
> <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
>
> (310) 576-1233
>
> *From:* Law-election [mailto:law-election-bounces at department-lists.uci.edu
> <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> 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
>
> 121 S. Broad Street, Suite 400
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>
> Philadelphia, PA  19107
> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fmaps.google.com%2f%3fq%3d121%2bS.%2bBroad%2bStreet%2c%2bSuite%2b400%2bPhiladelphia%2c%2bPA%25C2%25A0%2b19107%26entry%3dgmail%26source%3dg&c=E,1,lQXaginaZi_lgCfihrG6AJmkkOajM5Hr-rt6-9E3fWEfIqfgKmCqM5qZ5vILXQW58eoYrFsT7aPdYO0rQx2Z9Cs0h0ChMtld-nqdN6buKfQAamZM&typo=1>
>
>
>
> (267) 242-5014 (c)
>
> (215) 701-2321 (f)
>
> adam at boninlaw.com
>
> http://www.boninlaw.com
> <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.boninlaw.com&c=E,1,4aAx2oGp_dpRtCgNXPiqN5P_HsrAWCpBfKa0tZSi7LkvCgnmzFjV4ej31XsFxF3Mfsn4lGeI55DpZdvIAuwSbE4ettlvKYk-NKR0G3EZ5I8dmusR&typo=1>
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