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.