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

[Marty Lederman]

Trevor's piece is excellent.  Far as I can tell it carefully addresses all
of the issues that have been confusing various observers, except that he
doesn't address whether Trump himself would be criminally culpable.  I
assume he wouldn't be because, in light of Trump's profound ignorance of
what the law does and doesn't prohibit, the government would be
hard-pressed to prove that he willfully violated the law.

On Fri, Aug 24, 2018 at 9:56 AM, brendan fischer <brendan.fischer at gmail.com>
wrote:

> 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@
>> 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
>> <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,EK5dYxptOZRMADz44oqb_dPORP59e0AdPaahUyiB6WRonLTvWYwVL1V8J15Lar4d2rSudxd4ONi8V13FIk6Blj90V0aouGtP_Dqogq4y5iH72fzwYN5nMkA,&typo=1>
>>
>> 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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-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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