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As predicted in my last blog, Michael
Cohen pleaded guilty this week. This was not a shock. What did come as a shock
was that he pleaded guilty violating campaign finance laws and even claimed
that he did so at the direction of then-candidate Donald Trump. For those
anti-Trumpers out there, this was a watershed moment; finally, someone in
Trump’s inner circle had confirmed that Trump "stole" the election.
It may not be Russia, but it is at least something. The Trump defenders took
the opposite approach. They simply said that Cohen is lying to save his own
skin. In either case, as I wrote last month, Cohen is going to be labeled
a government snitch and that stigma will make life unpleasant in prison.
The President took another approach.
As usual he took to Twitter and wrote:
"Michael
Cohen plead guilty to two counts of campaign finance violations that are not a
crime."
Well that is certainly confusing! How
could someone plead guilty to something that is not a crime? How could a
prosecutor allow someone to plead guilty if what he did was not a crime? How
could a judge allow someone to plead guilty to something that is not a crime?
On the surface, the President seemed to be tweeting total nonsense!
Or was he? There is a belief that most
trials come down to facts. It is a test of he said-she said. Did he commit
murder, or did he not commit murder? Did he commit rape or was the sex
consensual? The prosecution presents evidence to prove their case and the
defense tries to poke holes in the story to establish reasonable doubt.
Ultimately, the case comes down to who the jury believes. If they believe the
prosecutor's version, then a guilty verdict is handed down. If they believe the
defense, then a not guilty verdict is handed down.
White collar issues are not always so
cut and dry. Sure, there can be a question if a bribe took place. Yes, there
can be a question of who was involved and who was not involved in a fraud.
However, very often, in white collar cases the facts are not up for debate. It
is conceivable that the prosecution and the defense agree on 100% of the facts
surrounding the case. They all agree a payment was made. They all agree a wire
transfer took place. In that case, how is it that there can even be a trial?
White collar crimes are ambiguous.
Many of the laws were written long ago before many of the advents of modern
finance leaving the courts or prosecutors to interpret their application. Very
often, the prosecutors apply the law to areas never intended and it can be up
to the Supreme Court to be tasked with interpreting the law. In these types of
situations, the trial centers around not what happened but whether if a
specific action was illegal. How we can expect a jury to be tasked with
interpreting a law, when even the lawyers cannot agree, is in and of itself a
systematic flaw in our criminal justice system. Sure, a defendant can opt for a
waiver of a jury trial and ask that the judge determine guilt or innocence but
that can only be done with the permission of the prosecutor. That also adds an
additional daunting prospect of having the person who actually found a
defendant guilty also deciding on a sentence.
During these trials, the prosecution
presents its case and tries to show that not only were the actions committed by
the defendant illegal, he also had intent to commit a crime which is necessary
to be found guilty. The defense attempts to show that the actions committed
were not criminal actions. The defense may even make the case that while
distasteful or unethical, they were not illegal. The recent trials of Sheldon
Silver, Dean Skelos and Senator Menendez were all cases where for the most part
the facts were agreed on, but it was left to a jury to decide if the actions
were illegal.
When it comes to Michael Cohen, there
is no disputing the facts. The entire country knows that he paid off Stephanie
Clifford to not speak about an affair she claims to have has with the
President. There is also no disputing that he arranged a payment from the
National Enquirer to a Playboy model to buy her story about an affair she
claims to have had with the President. The only questions are 1. Were these
payments illegal? and 2. Did Donald Trump know about these payments before they
were made? Rudy Giuliani, on Fox News stated back in May that even if the
President knew about it and even if he would have made the payments
himself, this would not have violated campaign finance laws as no campaign
funds were used for these payments. A representative of FERC even stated that
these payments were not illegal irrespective of whether Donald Trump had
knowledge. People have paid off women to be quiet with a lot less on the line.
On the other hand, the prosecutors took the position that any payment made to
attempt to influence an election is a violation of campaign finance laws.
Michael Cohen took a plea. He did so
for one reason and for one reason only: to avoid the risk of a longer sentence
had he been found guilty at trial. That is the reason, aside from financial,
anyone would take a plea. As a result of his plea, the prosecutors have agreed
to recommend a sentence of 3-5 years, although the judge can give him
significantly more. As part of that plea he had to concede that the payments
made were, in-fact, in violation of US law, even if that law is ambiguous and
he does not believe they were. In order to show that there was clear intent to
influence an election, he had to state that these payments were made at the
direction of "A candidate for federal office". Those were the
conditions of the plea. He did not have to admit to an action he did not do, as
is the case in many other types of plea deals; rather, he has to concede that
an action he did commit was in violation of US law. Incidentally, should that
law change or be overturned, he can attempt to have his conviction vacated.
President Trump, upon seeing this took
the defense position. His position, as backed up by his lawyers is that Michael
Cohen pleaded guilty to something that is not a crime; the very position
maintained by Cohen until he decided to accept a plea. Michael Cohen had no
choice. If he wanted to avoid a trial, he had to cave to the demands of the
prosecutors and even implicate ad flip on a sitting president. Often referred
to as extortion, this is the justice system at its absolute worst.
So, who is right? Well since there was
no trial and no jury to weigh in on the matter, they both are. Michael Cohen
has simply "embraced" the prosecution's application of the law. In
contrast, The President refuses to accept that the campaign finance laws can be
so liberally applied. But as far as the President is concerned Cohen pleaded
guilty to something that is not a crime. And guess what. Cohen is not the first
and certainly not the last. Sadly, this happens every single day.
Note: I am not a lawyer, and nothing
here should be considered legal advice.
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