Donald Trump signing legislation in the Oval Office on Tuesday.
Brendan Smialowski/AFP/Getty Images
Some major-league legal analysis by the man who is constitutionally tasked with executing the nation’s laws:
The context here is that Cohen was sentenced to three years in prison on Wednesday after pleading guilty to, among other things, criminally circumventing campaign-spending disclosure laws by arranging secret 2016 hush-money payments to two women who say they had extramarital affairs with Trump. Hours later, prosecutors announced that the tabloid publishing company AMI had also admitted to involvement in the circumvention scheme. (AMI made a payment to one of the women directly, attempting to disguise it as a contributors’ contract, and brokered the other.)
Now, there is actually some subtlety to the issue of whether Trump himself committed a crime, which would require having “knowingly and willfully” concealed a campaign expense. For one, there’s the potential argument that he arranged the payments not because of the campaign but to keep his family from finding out about the alleged affairs. That argument is undercut by what prosecutors describe as a 2015 meeting involving Trump and AMI chairman David Pecker in which Pecker offered to support Trump’s campaign by suppressing negative stories about Trump’s past relationships. Trump’s current lawyer, Rudy Giuliani, also said on TV in March that the payments were made to keep allegations of affairs from coming out before the election, and Cohen has affirmed that version of events in court.
As to the knowing/willful issue, the Department of Justice’s guidelines on the subject suggest that “the use of surreptitious means [to make payments] such as cash, conduits, or false documentation” is evidence of willful concealment; Trump didn’t make either payment directly, and reimbursed Cohen for the second one via a convoluted process involving the pretense that he was being issued a retainer. Another DOJ guideline says that evidence that an individual is “active in political fundraising and is personally well-versed in the federal campaign financing laws” can be used as proof of knowing and willing law-breaking; Trump was obviously active in fundraising when he was running for president.
There also doesn’t appear to be evidence that Trump sought Cohen’s “advice of counsel” about how to make the payments legally, and you can’t get off the hook for a crime because your lawyer was involved when you both knew what you did was illegal.
Anyway, though, my primary purpose here is just to chuckle about the phrase “I never directed Michael Cohen to break the law,” as if knocking on wood and shouting NO LAW-BREAKO while you’re doing something extremely illegal means you can’t get in trouble for it. Ha ha, what a quirky criminal president!
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