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I guess I don't really understand. This seems to me like one of the more straightforward cases against Trump, right up there with the classified documents.
1. In 2016 Michael Cohen committed several crimes to which he later pleaded guilty, including making an unlawful corporate contribution to the Trump campaign by paying Stormy Daniels.
2. Trump reimbursed Cohen for that payment to Stormy Daniels (in furtherance of Cohen's crime) from one of his businesses.
3. The payments to Cohen claimed to be pursuant to a retainer agreement that did not exist and pursuant to legal work that never occurred.
4. The reason for the description of the payments was to conceal Cohen's crime. Trump could hardly put "Reimbursement for unlawful campaign contribution" on the checks!
So we have (1) business records that were (2) falsified for the purpose of (3) concealing another crime. The theory of the case seems pretty straightforward? According to the evidence some of the checks were signed by Trump himself. Seems hard to argue he didn't know it was happening or approve of it.
What strikes me in all this is how this all could have been avoided if Trump were less of a cheapskate. According to Cohen's testimony Trump kept trying to put off paying Daniels until after the election (presumably to stiff her) and she kept threatening to call off the agreement and go public. Eventually Trump tells Cohen and Weisselberg to figure it out. Weisselberg claims not to have the money so Cohen goes and gets a HELOC (lying to his bank in the process) to pay Daniels (the unlawful campaign contribution). I'm pretty sure if Trump had just cut Daniels a check everything would have been fine. Candidates are allowed to spend as much money as they want on their own campaigns. Instead Cohen commits several crimes to pay Daniels and then Trump commits several crimes to reimburse Cohen. There was a less criminal way to do this!
Do you think Trump would intentionally commit a crime to help Cohen? If so, you hold him in higher esteem than I do.
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Why is this Cohen paying off Stormy Daniels with hush money so she doesn't hurt Trump's reputation for campaign an illegal campaign contribution?
I'm trying to wrap my head around how the actual spirit of the law was violated here. In a post Citizens United world I thought it was decided money is free speech (which I find astoundingly stupid and wrong), and effectively there's no such thing as too much money spent or proper use anymore, so long as certain bullshit forms are obeyed. If Cohen declared himself a PAC would he not be able to spend money on Trump's "mistresses" on his behalf? Is the special code words weren't evoked the problem? Frankly why can't trump pay off women as a campaign expense? What about a personal expense?
Politicians spend hundreds of thousands paying and being paid in wine and dine influence sessions, speech engagements, etc. all the time - as is my understanding. We all know this. It's not illegal. But a politician forwarding money to silence someone to protect his reputation is suddenly an unconscionable use of money in campaign/politics? Why?
Because it was undertaken with the purpose of influencing the election and in coordination with a candidate in that election.
If he had done so without any coordination with Trump then probably. PACs aren't supposed to coordinate directly with campaigns, that could be its own violation.
He arguably could pay them off as a campaign expense. If Trump had paid Daniels directly, out of either campaign or personal funds, that would likely have been legal. If Cohen made the payment and Trump reimbursed Cohen out of campaign funds that also might have been legal (it converts Cohen's campaign contribution into an operation expense). But if Trump did any of that he'd have to report the payment to the FEC, which he didn't want to do.
Hilarious, especially because this story keeps changing, depending on where we are in the argument. Most people used to say that if Trump reimbursed Cohen out of campaign funds, that would have been illegal use of campaign funds. The FEC says that there is an "irrespective" test, and so if Trump would have wanted to keep Daniels quiet irrespective of the election (quite plausibly), one would even say that it would be illegal for him to pay her from campaign funds. How do you see significant daylight between "Trump pays Daniels directly out of his personal funds," and, "Trump pays Daniels indirectly out of his personal funds," for purposes of campaign finance law? Statutory cites would be ideal, but even an FEC interpretation would be interesting.
Like, surely there are plenty of hypos here where you would agree. Trump doesn't have his wallet on him, so Cohen buys him lunch, then Trump pays him back later out of his personal funds. Surely, you would agree that this is not a campaign finance charge, yes? What then converts it into a campaign finance charge? Suppose Trump/Cohen were at a vendor, planning to complete a sale of a bunch of red TRUMP 2024 yard signs that Trump plans to distribute. Trump's plan is to pay for this from his personal funds, but he forgot his wallet, so Cohen pays for it, and Trump pays him back when they get back to his house. We have Supreme Court precedent that Trump is allowed to pay for election-related things from his personal funds. The FEC says very little about this, because they basically don't touch expenditures of personal funds by candidates. They have plenty to say about things like extending credit when you're paying it back via campaign funds (or a PAC), because that is directly about the use of campaign funds (or PAC funds). This is about personal funds.
To be clear, here are my thoughts on how this could have been structured lawfully. My reference is the FEC guidance on contributions and the FEC's definition of expenditures.
1. Trump pays Daniels himself. If Trump paid Daniel for the purpose of influencing the election it's an in-kind campaign contribution from the candidate to the campaign. The campaign has to report it in their FEC filings but this is otherwise legal. If Trump would have paid Daniel whether or not he was campaigning for president he doesn't have to report anything.
2. Cohen pays Daniels. If Cohen would have made this payment independent of the election (ignoring the crimes Cohen committed to get the money) it would be legal. If Cohen made this payment to influence the election I'm not sure there's any way to do it legally. The FEC guidance indicates individual in-kind campaign contributions can be converted into campaign operating expenses by reimbursement but also says they are considered in-kind contributions until the reimbursement happens. Since the contribution was way in excess of the limit it would seem to be an unlawful contribution from the beginning.
It depends on what is in the "indirectly." If the indirect payment involves someone else making an unlawful in-kind campaign contribution it would be a campaign finance violation (though not for Trump). Trump isn't charged with any campaign violations in the instant case anywyay.
If the lunch was a campaign expenditure and they did not report it or the amount was in excess of the legal maximum it could be a campaign finance charge.
If the initial amount of the payment was in excess of the legally allowable maximum for in-kind contributions I think this would be a violation as I describe in (2). If it were below that amount I believe Trump's reimbursement converts Cohen's in-kind contribution into a candidate in-kind contribution.
I'm already off the train here. I don't think this is true or supportable. Can you find any language to support this claim? Candidates are free to spend their own money, and it is not a campaign expense or contribution. Nor do I believe that there is any statute, guidance, or caselaw that would require this to be reported. EDIT: For example, if Donald Trump took a five dollar bill out of his own pocket, money that has never been given to the campaign, has never touched the campaign books in any way, it is his money from his own personal income, and spent it on a lawn sign that he puts on the lawn in front of his own house, I do not believe that this would trigger any reporting requirements. Do you agree/disagree?
Agreed.
Binding Supreme Court precedent says the opposite (unless you have something further that you meant to imply but didn't actually state). For example, I could take money out of my pocket right now and spend it on something that I think would influence the election (e.g., a lawn sign promoting a candidate), and that is absolutely legal.
What would make it a campaign expenditure? You need to spell out what the test is. Not an "if", because that is the precise question that I'm requesting an answer to and the crux of the issue.
There is no such thing as a candidate in-kind contribution. There can be campaign in-kind contributions (and PAC in-kind contributions for another example), but there is no such thing as a candidate in-kind contribution.
The FEC has a whole page discussing in-kind contributions to campaigns from candidates.
...
That is correct, but that's because there is a minimum dollar amount of $200 before candidate campaign expenditures become reportable in-kind contributions.
I should have clarified, if Cohen makes this payment in coordination with Trump and his campaign it is unlawful. If Cohen did this spontaneously, of his own volition, it would be no issue.
I did not have a specific hypo in mind but the FEC page on day to day operations gives meals as something that can conditionally be a campaign expenditure.
Bolded the key part.
Ok, so let's say Trump pulled two crisp hundred dollar bills out of his pocket to buy a YUGE sign that he put on his own lawn. Reportable? Criminal?
Aye, this again contributes to the claim that there is a distinction between a "campaign expenditure" and things that are not campaign expenditures. For example, Trump can take his campaign staff out to lunch and pay for it all using campaign funds, and this is a campaign expenditure. On the other hand, Trump can take his buddies from the golf course out to lunch and pay for it using his personal funds, and it is not a campaign expenditure... even if he thinks that this lunch has the possibility to in some way increase his chance of winning an election (e.g., he thinks that he will be incredibly charming and that they will be positively influenced to independently support his candidacy).
This is an obvious case where there is the possibility of mixed motives, which has been a huge thorn in the side of most arguments on several Trump-related topics. If Trump takes his golf buddies out to lunch, he may both have a motivation that they're going to like him and that it will increase their chances of doing business with him, so he has personal/business motivations. He may also have motivations that this same positive emotion might inspire them to support his candidacy. It is extremely difficult to tease these apart, which is why most of the rules try to avoid touching on these issues. They try desperately to avoid it (and they never bring such questionable cases, due to risk that SCOTUS will strike down larger swaths of campaign finance law than they would like), because there are obvious legal theory and constitutional issues. Even questions for things like lunches are a bit vague on this, likely precisely for this reason. Therefore, this is why they would have to build a case that the lunch is, indeed, a "campaign expenditure", but this requires facts, context, and argumentation. It's easiest and most clear to just identify the ultimate source of the funds - if it's coming from actual campaign funds, it's reportable. If it's not campaign funds, but a candidate took out all his campaign staff, in the same way that he would normally take them out and use campaign funds, but he used personal funds this time? Really hard case, though I doubt anyone would bring it unless they had a vendetta against the candidate. The candidate takes out his golf buddies, pays with personal funds, and maybe has some mixed motive that it might help his candidacy, too? Highly doubtful.
Now, put this in the context of the NY trial. We have at best for the prosecution a very murky federal law. We also have a murky NY law (are we sure unlawful means federally unlawful).
The prosecution offered zero evidence that Trump was thinking of either law let alone that Trump thought he was breaking either law and that hiding these internal records would help hide this alleged crime. Moreover, there is a standard in law that criminal statutes cannot apply if they are overly vague. When the FEC cannot agree on what the law is, then it surely cannot form the basis of a criminal conviction for state law purposes.
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Lunch was not bought for the purpose of influencing the election. Not that there's anything wrong with trying to influence an election, that's what campaigning is. But the campaign finance rules attach.
My reading of the law is it would depend how much the signs cost. A payment made on behalf of a candidate counts as a donation to that candidate, and as far as I can tell this is true regardless of whether the money is paid back later or not. So the question is whether or not the amount comes in below the threshold that Cohen is allowed to donate to Trump for campaign purposes.
You’ve ignored the mixed motives question which is the whole ball of wax here.
According to the jury instructions, the way the law handles mixed motives is as follows:
Citing that as the law is fucking hilarious. Dude is a lowly biased state trial judge. Scalia made the comment that FECA is the most highly complex law that is hard for SCOTUS justices to parse.
So here we have a biased judge who never in his life had to look at this law (ie is a complete noob) and who is a trial judge in general (ie not appellate and therefore not probably the best person to articulate the law) in one of the hardest areas in US law, but you are citing his fucking jury instructions as if that sheds any light on the law? Especially when a former head of the FEC (appointed by Bill Clinton) is saying otherwise.
I don’t know if you are doing that because you are just naive here because you’re Australian or otherwise but it just shows such a lack of knowledge.
I'm most certainly ignorant, so please, educate me. What is the governing case law on this topic, and how does it differ from Merchan's instructions?
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What about it being a loan from Cohen, instead of a donation? Does that work?
I don't think that makes a difference. Otherwise you would have a loophole where a billionaire supporter goes and "loans" his preferred candidate some enormous sum of money on "pay it back when you can (aka never)" terms.
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No. A payment made on the behalf of a campaign counts as a donation to that campaign. (This would be the case if the campaign reimbursed him from campaign funds.) Similarly, a payment made on behalf of a PAC counts as a donation to that PAC. (Again, this would be the case if a PAC reimbursed him from PAC funds.) This was a payment made on behalf of an individual, in his personal capacity. Please cite any statute or FEC interpretation that regulates this behavior as a criminal matter.
§30116(7)(B)(i):
The context of that is that it is a campaign expenditure. You’ve stolen a base assuming it is a campaign expenditure.
You should read what Brad Smith wrote about mixed motives and campaign finance law. Your view seems to be that subjective intent matters but then you create a wholly ungovernable and dangerous scheme for candidates.
Imagine there is a debate coming up. Candidate wants to look sharp so goes to buy a new suit. Well his motive is to look good for campaign purposes so should he use campaign funds? If he does, then he opens himself up to claims that he improperly used funds to pay for the campaign because after the debate he still has this fancy suit (ie there is a mixed use).
Let’s say his proud mother buys the suit for him. Did they run into a campaign finance problem because subjectively it was for the benefit of the campaign? Or was it? Was it just a proud mom having affection for her son and proud of where he was?
Let’s say the candidate is friends with Person X. X regularly has lunches with Y and Z and routinely brings other interesting people to lunch. X brings along the candidate because he wants Y and Z to vote for him but also thinks the candidate is interesting and it would make for an enjoyable lunch. X pats for the expensive lunch. Campaign contribution? If so, does the candidate have to pay for brunch with campaign funds? Now you created jeopardy in that case.
All of these hypos show why mixed motive cases should not be policed because they create untenable and unknowable catch 22 situations for candidates. It is why Brad Smith believes the rules are bright line.
So I think, much like the Colorado case you got dreadfully wrong, you aren’t thinking about the havoc your interpretation of the rules would wrought. Once you think about that, then it becomes clear it can’t be what the system was intended to do.
To be clear, this isn’t a resurrection of the church of the holy trinity. But it is asking in dense texts with hard to understand meanings “does this interpretation create such a crazy system that we don’t think ambiguous phrases should be constructed to lead to such a crazy result.” That is, it is a clear statement principle somewhat similar to the major questions doctrine.
My understanding is that the law says that if the expenditure would not have occurred but for the candidacy, then it is a campaign expenditure. If it would have occurred anyway, then it is not. So in reference to the Trump case, the question is if Cohen would have paid off Daniels if Trump had not been trying to get elected. Presumably, the jury was satisfied that the evidence showed he would not have.
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Ok, let's walk through a hypo to see why the FEC's guidance documents walk a tightrope between interpreting this in a way that lets them get at serious concerns and using this language in a more direct way that runs the risk of jeopardizing the entire edifice of the statute.
Let's say Trump pulled two crisp hundred dollar bills out of his pocket to buy a YUGE sign that he puts on his own lawn. Is that a "contribution to a candidate"? A "contribution to a campaign"? Reportable? Criminal?
I think it's reportable.
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The kind-of-arbitrary rule the system has somehow decided on is that you can limit contributions to candidates, but you can't limit people speaking their own mind. So you can donate unlimited money to a PAC but that PAC can't coordinate with the candidate.
So in the hypothetical where Cohen declared himself a PAC he would have violated election finance laws by coordinating his activities with Trump.
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I thought the only thing that was illegal was that the campaign contribution was not reported. I didn't think the payment itself was illegal.
It seems like a bit of stretch to call this campaign contribution just because it makes him look good. Is them anything you do to make yourself look good a campaign contribution? Alao, reporting the contribution would defeat the purpose of the payment, which was to conceal information. Is it now illegal to conceal information about yourself to make yourself look good while running for election?
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The big issues:
Cohen campaign finance violations were part of a plea bargain about some much more serious charges; on top of the normal limitations of using a plea bargain (or the National Inquirer non-prosecution agreement) as evidence, there's a unusually steep chance that Cohen plead to it whether or not it was a crime he actually committed rather than face much more serious charges and as part of his pivot to go after Trump. ((This is a pretty common issue in more normal criminal law, where prosecutors will hammer on whoever they think has the least spine to get a plea that implicates the people they're really after, whether or not any of them were breaking the law.))
The scientier requirements would normally require not just that Trump did something that concealed a crime, but that Trump be aware that he was concealing a crime; this is one of the few places in criminal law where ignorance of the law could well be a defense.
And it requires that Trump intend his false statements conceal that crime; if Trump believed no one was going to look at the records and care, than it couldn't be fraud.
There's also some messiness in that Cohen plead to a federal campaign finance charge. It's not clear that's what the jury (or part of the jury) considered the underlying crime, but if they did, this raises serious questions about whether a state can bootstrap a misdemeanor into a felony by relevance of a federal law. It's... not clear that's how that works.
There's a variety of other process issues, from whether judge's family's financial interests would justify a recusal (contrast), or whether Cohen's plea and testimony should have gotten more serious disclaimers given everything going on with them, to some goofiness about Wiesselberg being required to testify or plea the fifth.
((It's also very unclear Trump cutting Daniels a check would have avoided legal scrutiny, here; there are also federal laws against using campaign funds for personal expenses, and if Trump had written it down as a campaign expense, well, how do you know he was using his pot-of-money rather than the campaign-pot-of-money.))
Those are avenues for appeal, but they aren't all good avenues for appeal. Keep in mind that I haven't read a full trial transcript and my knowledge of the specific laws involved is limited to what I read in the news. To go one by one:
For the interest of completeness, I have no idea whether Trump personally cutting a check would have avoided legal scrutiny, but the ambiguity doesn't really bother me, because I don't like the idea that someone trying to be President would blatantly hide information from voters. Hell, at least have the foresight to do it before you're actually running so there's no campaign money to speak of.
I think you're missing a lot of details specific to the case.
Cohen testified, and was allowed to testify, at length not just on his actions, but that his actions violated federal law, while limiting the ability of the defense to cross-examine on matters of law. The latter is fair; the former is not harmless error.
Yes, if the jury were adequately instructed. The disclaimers here, like the curative instructions, might have been usable for the typical case, but they're woefully incomplete for one here. For the matter of "INTENT TO COMMIT OR CONCEAL ANOTHER CRIME":
There's some question about whether they are, but more seriously, the jury instructions did no adequately that jurors needed to find that the intent. Again, see above link.
The state campaign finance challenges were New York election law 17-152, which itself in turn requires an 'unlawful means'; there's no swappero between federal and state campaign finance laws for this conviction.
The underlying crime that the state theorized were some combination of federal campaign finance laws, state laws about false business records, and state tax record laws. If the jury convicted based on state tax record or false business record statutes... well, there are other issues, but it would avoid the federal question. But the judge did not require all jurors to record what theory they signed onto, or even to agree on what underlying theory; if even one juror convicted on the federal campaign finance laws, the issue remains relevant and is a reversible error.
And because the unlawful means must promote or prevent the election of a candidate to be usable for 17-152 (which neither internal business records no state tax records are likely to do), it's very plausible that the jurors convicted on a FECA theory.
I mean, I doubt the New York Appellate Division or Court of Appeals would take up any issue seriously.
I think it's something more specific to the false tax records theory not having sufficient evidence for a jury to convict, and that Wiesselberg is out of the defense's control (as he's a) in Riker's and b) would almost certainly plead the fifth), but I'll admit it's definitely a less plausible matter and you're right that the defense avoided calling him more because he's a weasel and this would limit his utility in an appeal regardless of whether by strict precedent it 'should' matter.
That might be nice as normative matter, but as a descriptive one, the current sitting President coordinated with a large number of both intelligence agency spooks and tech companies to excise a negative story right before the last election. So there's your first problem.
But the more serious one is that we are supposed to live in a country of law, not a country of whatever laws someone can stretch to cover something kinda if you squint and have a really friendly judge and jury. You are not going to see a sudden outbreak of convictions for blatantly hiding information from voters, nor would any competent lawyer have informed people that it was illegal.
I didn't read the entire transcript, but I scanned Cohen's testimony, and I couldn't find any instances where he's asked to draw legal conclusions. The only thing approaching that that I could see, as you said in your initial comment, was that he admitted to having plead guilty to certain Federal crimes. The defense never challenged the admissibility of this testimony in general. They filed a motion in limine to prohibit the prosecution from using those pleas as evidence that the underlying crimes were committed, and they won that motion. The evidence of the pleas was admitted so that the jury could evaluate Cohen's credibility, and the judge gave a limiting instruction as soon as they came up. The defense's motion conceded that the plea evidence was admissible for that purpose. They never tried to get the evidence out entirely, and it wasn't in their interest to, either, because without the evidence of the pleas, it would seriously hinder their attempts to discredit Cohen. Given the limited nature of what Cohen actually testified to on direct, the prosecution probably wouldn't have even opposed a defense motion to keep the plea evidence out entirely, since the defense would have had much less to work with.
Beyond that, I don't want to get into too many details, but inadequate jury instructions and insufficiency of evidence are usually long shots when it comes to getting an appeals court to overturn a jury verdict. I argue in another post somewhere that intent (most of the time) doesn't require knowledge that the action is illegal. As for that last bit, it wasn't so much about hiding information from voters as it is hiding expenditures from voters. Laws requiring disclosures were created with the express intent of creating a certain transparency in election-related spending. I was reacting to the commenters here who were saying that Trump was in a kind of Catch-22 because there was no way he could have made the payment without drawing the scrutiny of the FEC. This clearly isn't true; if I were Trump's attorney I would have told him that if he wants to be completely safe he should pay it out of his personal funds and report it as a campaign expense. Alternatively, he could pay it out of his personal funds and not report it because unless it's obvious that sort of thing is rarely punished. Paying it out of campaign funds and reporting it isn't recommended but at least it makes it look like he's on the up and up. What I wouldn't tell him to do is to have a third party make the payments so they can't be traced to him, and then create phony documents to obfuscate the reimbursement.
And that he hadn't lied about it, and that he was guilty of it, and so on. That's not saying 'x was a violation of Y statute", but it's obviously saying that 'x is a crime'.
I can't find any text of the actual request, but the 'limiting instruction' as delivered was just to say that the pleas do not "constitutes evidence of the defendant's guilt and you may not consider them in determining whether the Defendant is guilty or not guilty of the charged crimes". As a matter of law, it may not be sufficient problem to be reversible error -- SCOTUS caselaw on sufficiency of limiting instructions is thin and messy -- but the pretense that the prosecutors were bringing it up to evaluate Cohen's credibility, rather than to show that there was a FECA violation for Trump to have hidden, doesn't pass the sniff test, and it's not a small part of the trial.
"(most of the time)" is doing a lot of work, here. The law generally does not require that you know the specific text of the law you're violating, but even that has its exceptions. When the law prohibits 'doing illegal things' the exceptions grow: Liparota is the standard example, here, where a statute about "knowingly uses... in any manner not authorized by [the statute] or the regulations" required the defendant to be shown to know it was actually not authorized, even though that was strictly a question of law. And that has applied in business records cases, such as Ratzlaf most famously Arthur Andersen LLP v. United States.
Now, the statute in Liparota made clear that it required a high level of mens rea, where (unsurprisingly, given the different ages of the statutes and models for state law) the New York statutes are more vague. But, under both federal law and New York law, where no specific level of mens rea is in the statute does not automatically produce a strict liability crime, either! And in this case, the stapling-together of various statutes only elevates the normal concerns.
To be clear, the motion in limine never asked the court to preclude all testimony relating to Cohen's guilty plea. It only asked to prohibited the prosecution from arguing that it was evidence of a violation. The defense even made it clear in their motion that they intended to ask Cohen about his convictions on cross. The defense never claimed the limiting instruction was insufficient. I don't see anything here for an appellate court to work with.
As for your second argument, I wasn't trying to argue that this is a strict liability crime! I was simply trying tease out the general principle that "intent" isn't necessarily as specific as some seemed to think it was , partially due to confusion between the FECA requirements and the requirements of the law Trump is actually being prosecuted for. I'm not going to reproduce the jury instructions here, but they go in at some length about what constitutes intent for the purpose of the New York statue. Bringing up cases from a different jurisdiction that involve a different standard don't do much to bolster arguments about intent requirements in this case. In any event, I can't find anything in the pleadings to suggest that the Defense ever raised this issue or had any problem with the jury instructions that were ultimately given.
I think the ultimate problem here is that the jury came to a conclusion some people disagree with. You don't think Trump had the requisite intent? That's fine, but the jury heard the evidence presented and came to a different conclusion. It's okay to disagree, but thinking the jury got it wrong isn't grounds for an appeal.
I mean, I've quoted -- in this very thread, just a couple comments up! -- those same jury instructions. It's not like the FECA part is better, and both the jury instructions and trial transcript point out the fine details of the terms for that, either.
I think I've made it very clear that I'm arguing about the law, not the jury's determinations on facts. I get that you're trying to juggle a lot of conversations, here, but just repeatedly asserting that the question of intent papers over any questions of what the law does or can prohibit this way isn't very compelling or engaging well with my claims.
I apologize for any confusion I may have caused, but I'm not exactly sure what you're arguing here. The court laid out the necessary intent standard in the jury instructions. If you think that instruction was incorrect, you need to tell me what the court should have said. I'd look myself but I don't happen to have a copy of the New York jury instruction manual in my office. If that standard is appropriate then whether the prosecution met it is a factual issue, not a legal one.
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A few responses:
By the way, the whole thing was made worse by the prosecution stating in closing that it was a fact that Trump committed a campaign finance violation. You put all of that together and it sure looks like reversible error to me.
Re scienter there is not a single piece of testimony that Trump even thought about FECA violations. There was testimony that he thought about the election and wanted the payment for the election (which the prosecution argued and the judge accepted—probably incorrectly—as a campaign finance violation) but literally zero that he wanted the books a certain way to cover up the campaign issue. That is fatal because the government has the burden and it proffered to my knowledge zero evidence.
The bootstrapping point is not moot. The “unlawful means” appears to be a FECA violation IN THIS CASE. That means effectively Trump was convicted because NY law prohibits false bookkeeping if it was intended to cover up federal election law rules. That is…far from obvious.
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If Trump paid back Cohen, then Cohen no longer made a campaign contribution since he was acting as Trump’s agent… it also isn’t close to clear that cohen made a campaign contribution
It seems really weird you are arguing Trump exposed himself to criminal liability to try to help Cohen…
Also you have zero evidence connecting Trump to this scheme except the partial testimony of Cohen (he doesn’t even testify to all needed elements) with no corroboration. So you are using the word of a serial perjurer to send someone potentially to jail.
This is not how the FEC understands campaign contributions:
Now, a campaign can transform an in-kind contribution into an operating expense by reimbursing the person making the in-kind contribution, but the Trump campaign never did that. Cohen was reimbursed by the Trump organization instead.
I mean, it helped himself too. Otherwise Daniel (or Cohen) might have gone public much earlier to unknown effect.
This is not correct. Trump himself signed some of the reimbursement checks to Cohen.
We could have had testimony on how the FEC understands these things, but Judge Merchan explicitly ruled that Brad Smith couldn't testify to anything substantive on that front, because allegedly only the Court had jurisdiction to rule on legal interpretations like the meaning of statutes and regulations - even ones outside the Court's proper jurisdiction, apparently.
Except for you know allowing Cohen to offer testimony on it.
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I will respond to the others when I have time but with the latter signing a check is not the same as saying Trump had a scheme to book things a certain way because they were worried about campaign finance laws. All it says is that Trump agreed to pay money to Cohen presumably in part as reimbursement.
It doesn’t at all go to scheme.
It means that Trump knew about the reimbursement Cohen. Coming from his business. And presumably how it was booked. If there was also no retainer or other legal work Cohen had done (and Trump knew that) it goes to his intent to commit fraud.
See you use words like “presumably.” There is zero evidence of Trump knowing how or why it was booked a certain way. You are making a leap.
And Trump is saying Cohen worked for years on an oral retainer. No evidence to the contrary to my knowledge.
And again none of that goes to the point that that says zero about Trump’s intent to commit the predicate.
1)There was a person at the trial who could have provided insight on Trump's intent - Donald Trump. He and his defence team elected not to have him testify.
2)When you sign cheques, you are responsible for understanding where you are sending the money.
Okay. You don’t believe in civil liberties. Got it. You also don’t believe in the burden of proof.
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Nope. There's no other crime being concealed. That someone somewhere plead guilty to a non-crime as part of a package deal rather than vigorously defend the position that it was a non-crime in the courts (where they would have won) does not actually make it a crime. You still need to show that it's a crime, but that's going to run into serious legal theory problems, not least of which includes the first amendment. This result is remarkably easy to see if you've spent any time reading the Supreme Court's first amendment/campaign finance cases.
This will... eventually... come back on appeal to the courts that actually give a shit about legal theory. It is unlikely to come back before the election, so perhaps the damage to democracy is irrevocably done.
I mean, maybe there's an argument Michael Cohen could have made that his conduct was not criminal, that the statute criminalizing it was unconstitutional. I am skeptical any court is going to get into that matter separately.
But again, whatever happens/happened with Michael Cohen's legal case is completely irrelevant for Donald Trump's legal case. When Donald Trump appeals his conviction, specifically on the grounds that there was no other crime being concealed, the courts will get into that issue. There is nothing "separate" about it.
I guess I'm wondering what this looks like. Is the idea that the NY prosecutor is going to have prove Cohen guilty beyond a reasonable doubt? Skeptical that's the actual standard.
No. Donald Trump says, "That's not a crime," and when they check how it is possible for the mostly uncontested facts to comprise a campaign finance crime, they will see that it is, in fact, not a crime. Like, have you ever read an appellate decision? ...have you ever read one where they do this sort of thing? Where it's like, "Yeah, this is what happened, and that is what the law says, but if we're going to read this law in any way that comports with the Constitution, it cannot possibly make this set of facts a crime." This happens regularly, even in the circuit courts. Maybe even just start with Citizens United. It has the campaign finance/first amendment angle, too. The court was definitely all, "Yeah, this is not a crime."
But Citizens United was about whether those particular defendants had committed a crime. The analogy is Cohen appealing his conviction. What's the citation for a case where some person A is appealing their conviction and a court decides some other person B has not committed a crime they pleaded guilty to?
The court doesn't have to decide anything about Person B's case. For the third time, Cohen's case has nothing to do with it. They have to decide whether the underlying facts comprise a crime, for Trump's case. Cohen's plea is literally the least persuasive authority possible for whether it is a crime. It would be slightly more persuasive if he was convicted at trial, but that's still nowhere near binding on the appeals courts. If Cohen had appealed his case on the grounds that it's a non-crime, and the appeals court in question ruled that it was, after all, a crime, that would be significantly more persuasive, but not binding unless it was the same appeals court. And of course, Trump's case could go all the way to SCOTUS, which means that unless Cohen had vigorously protested on his own that it was, indeed, a non-crime all the way to SCOTUS, himself, and then had them tell him that it was actually a crime, they can do the same damn thing they've done in many cases and just say, "Nah, dawg, that ain't a crime."
Cohen's plea has literally nothing to do with it, and no court has to decide anything about Cohen's legal situation.
Maybe I am not understanding. You say it has nothing to do with Cohen's case, but then say the appeals court has to decide whether Cohen committed a crime. That seems pretty related to Cohen's case!
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But your theory of the case is that Trump conspired to his Cohen’s guilt. That wasn’t what the government argued and honestly itself is not shown by the facts.
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No, they'll consider the issue already decided by Cohen's plea, and not subject to re-litigation by Trump. The legal system is full of sneaky little gotchas like that.
I find this utterly implausible. For the record, I find it completely plausible that various courts could find some way to rule against Trump, but this one will simply not be there. Higher courts know that there are plenty (not in percentage terms) of people who are in prison for non-crimes, especially as parts of plea deals, that would be found to be non-crimes if contested appropriately. It would be one thing if Donald Trump had plead guilty to the requisite non-crime; I could absolutely see a court viewing that as settling the matter. But I cannot possibly believe that someone else pleading guilty to a non-crime settles the matter in the case in front of them. In fact, I imagine the court records are full of people appealing (some successfully) their convictions for things that are non-crimes, even though they had accomplices who plead guilty to those very same non-crimes. I challenge you to find me one example of a court simply rejecting any possibility of such an appeal based solely on a third party's plea agreement.
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Why is paying Stormy Daniels a campaign contribution? Why doed Cohen pleading guilty prove Trump committed a crime too?
Please note that campaign finance violations are the FEC's wheelhouse and they neglected to pursue charges because no crime occurred. Besides, this is circular reasoning: Trump committed a crime because Cohen committed a crime because Trump committed a crime. Under this logic, any politician who has ever paid to bury a story has committed a crime.
That's another thing, Cohen is a perjurer and also admitted to stealing money from Trump on these checks -- apparently, according to Cohen's story, Trump knew intimately the details of the money given to Stormy Daniels, but not that intimately!
Right, that's the thing: this is a totally normal thing that happens to powerful people all the time, only New York blew it up to try to make it a get Trump case. There is no case here.
Because the purpose of the payment was to benefit the campaign. According to the FEC
...
Perhaps I have not followed the trial closely enough but it is not clear to me, from reading the actual NY law at issue, that the crime being covered up has to also have been committed by the person doing the covering up. If A enters false business records to cover up B's crime it seems to me that would be covered. It does not seem to be required that A's false business records cover up A's own crime, but I could be wrong about that.
This is not correct. Cohen committed a crime (an illegal campaign contribution) and then Trump committed a crime (falsifying business records) to cover up Cohen's crime. As I note in my comment if Trump had paid Daniels himself it likely would not have been a crime, because candidates are allowed to spend as much as they want on their own campaigns.
I think that depends on what you mean by "this." I do not think it is that common that powerful people get their lawyers to commit bank fraud and FEC violations to help them get elected, then commit further crimes to try and cover it up. Heck, if Trump had paid Cohen back out of his own pocket (rather than his business) that probably wouldn't have been a crime either! Or at least it wouldn't have been this crime.
There is no IRS claim here. If he recorded this as a business expense instead of a personal expense then there would be tax implications. No such case exists.
Honestly the lack of a tax charge is completely confusing me on what he was misrecording.
The fact the FEC reviewed this and said no crime also seems like a big issue for NY to say a crime occurred.
It does seem like there ought to be further tax charges, under either NY or federal law. Not sure what you mean with the FEC review. The FEC definitely thought Cohen committed a crime but I don't think there's an allegation that Trump's conduct was an FEC-enforceable violation.
Then why didn’t the FEC charge Cohen? The underlying crime which makes what someone wrote in excel a felony is that there is an underlying crime.
That crime is under the jurisdiction of the FEC. They never charged anyone.
Because he pleaded guilty? You can read all about the FEC violations he committed in the contemporaneous DOJ release. What was left to charge him for?
This isnt really accurate. He was being investigated for tax fraud and they threw it in (basically working with a Clinton attorney) as part of the plea.
Not accurate... how? He didn't plead guilty to those crimes?
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You don't think that powerful people cover up crimes all the time? I think this is incredibly naive, in an age when regulatory choke means everyone is breaking technicalities all the time.
Moreover: this is an extremely dubious technicality. Your argument is that Trump definiteky committed a crime which wouldn't have been a crime if he'd made one simple bookkeeping change. This is really your idea of a slam-dunk solid case of crime?
Yes. Lots of things can be a crime if entity A does them but not if entity B does them. If Trump had paid Daniels (and maybe Cohen) out of his own pocket there would have been no crime. The crime is entirely in how he went about it.
Then when Hillary and the attorneys at Perkins all get convicted of the same thing over the Russiagate dossier then I'll update as this is legitimate.
Hillary Clinton was fined 100k for improperly reporting expenses on the dossier as legal expenses.
That's my point. Business as usual is fining a campaign some token amount years after the election.
If either Trump's 2016 Campaign or 2020 Campaign organizations were similarly fined no one would be up in arms. When she and the attornies who assisted her in that are all personally convicted on criminal charges that's an indication of similar treatment.
I really would like to through and prosecute everyone and their attorneys whose been given a misreporting campaign expenses fine with criminal fraud charges. Would go a long way to actually draining the swamp.
What crimes did they commit? The only person in Trump's case convicted of (pleaded guilty to) campaign finance violations was Michael Cohen, because he gave an illegally large in-kind contribution. Trump's crime is a New York state charge for falsifying business records.
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Yes, a fine is the typical response to misclassifying campaign expenses, not a felony.
Sure. If the Trump campaign had reimbursed Cohen and lied about what it was for they plausibly also would have paid a fine. Instead Trump had his New York business falsify documents to reimburse Cohen.
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This is crazy! Why would Trump go out of his way to do things the illegal way if it were already legal? Apparently, Michael Cohen paying something on Trump's behalf becomes a campaign contribution, which means Trump paying Cohen back becomes cover-up. That's ridiculous!
That's not a serious legal theory, which is why it's never been used on anybody before now. That's the rationalization made up to explain why Trump was guilty. If it weren't that, it would have been something else.
Part of the problem with this whole thing is assigning intent to a guy who seems to wing it on instinct and never really bothers to do due dilligence to make sure he's doing things the proper way -- and who hires shitty, sleazy lawyers who are also incompetent at covering the legal bases. Trump is sloppy. Contrary to the memes, he's barely playing 1-D Chess. He follows the straight line from his desires to his ego. It's entirely possible given his apparent modus operandi that no one thought to check if there were any legal issues with anything related to the FEC or any other set of regulations, and "legal services" was written on the checks because Cohen was a lawyer, making anything he does "legal services."
I don't doubt that Trump is guilty of hundreds (if not more) of compliance violations, because he generally holds all rules and official processes in contempt. Felony convictions for details he likely never bothered to consider or understand seems harsh; but it does make a good case for why political parties should screen their candidates with a more serious sense of purpose.
But that’s the entire point. You needed to do it with an intent to defraud and commit another crime. If he wasn’t thinking at all about that, then that is proof he didn’t commit the crime.
The prosecution has to argue he was thinking about it, there was in fact a legal method, and Trump was like “fuck that, I want the criminal way. Leeeeeeeroy Jenkins.” That just isn’t reasonable.
Yeah, I agree. But Trump is his own worst enemy and creates most these problems for himself. It's hard to feel sympathy for him when he is essentially dooming himself by repeating the same mistakes over and over rather than adapting -- even though I think he is being unjustly persecuted in a way that really hurts the entire country. Even if he's the least-bad part of this whole debacle, I can only shake my head in pity at mess he's put himself in.
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But having laundered that through a jury, it's established. There's no avenue for appeal there.
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If Trump were really sloppy as you allege, prosecutors would have been able to find more serious charges to bring against him. Ten years of political spotlight and they can only get him on charges that have literally never been used against anyone ever before. You don't doubt that he's guilty of hundreds of similar crimes? Then why haven't they brought anything forward? That's the sloppy thinking here.
Not necessarily. As we can see in this case, it can be really hard to create the semi-coherent appearance of a case out of a bunch of nonsense and make it just opaque enough to pay off. If a guy is racking up hundreds of little process violations because HDGAF about process, the trick is to turn those into a felony in one of the jurisdictions jaded enough to convict without ever questioning the premises. It's probably easier to charge and convict a smooth operator who is knowingly committing crimes because once you catch them in act with intent, you have your smoking gun. If someone is carelessly racking up violations by just not caring, it's going to be really hard to prove an intent that never existed.
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According to who? The prosecution?
This is a novel argument: personal money you spend on personal causes makes you a better candidate, so it counts as a campaign contribution! There is no limiting principle here, because it's a silly argument that has never been used before. Even your quotation of the SEC shows the distinction: according to the prosecution, the payment wasn't made by Trump's campaign but by Trump himself.
The prosecution, yes, but also according to Cohen, Packard, and others who were negotiating the deal at the time.
Let's not get confused. There are two payments here. Cohen's payment to Daniels was an unlawful campaign contribution by the FEC definition. It exceeded the allowed limits and was made on behalf of and in coordination with the candidate. If Trump had made that payment himself it would not be a crime because he can spend as much as he wants on his own campaign. Trump's payments to Cohen may also not have been problematic if Trump made them directly, but he paid them through his business instead and lied about what they were for.
You have the basic factual problem that both Stormy and Cohen have coronated that Stormy’s story was shut down in 2011 putting a lie to Cohen’s belief that it was solely about the campaign. Indeed Cohen’s evidence (if you believe that POS) was that Trump didn’t give a shit if Mrs. Trump found it therefore he only cared about the campaign. Cohen seems to think it is binary. But maybe Trump would care about how his son with Mrs Trump would care? Maybe Trump was bluffing about Mrs Trump to not appear pussy whipped?
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Paying off a mistress sounds like a fairly normal thing for a private banker or rich guys personal fixer.
So does paying a grifter to go away if they sign an NDA with a huge clawback clause.
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It was tried once before re John Edwards. It was crushed and everyone moved on. It is why Brad Smith was willing to testify.
John Edwards was accused of the opposite, using campaign funds for his personal needs. That happens sometimes and politicians do occasionally get convicted for it. That's what makes the Trump case so egregious.
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His mortgage on his primary residence counts as a campaign contribution because people are less likely to vote for a homeless person. /S
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I still haven't seen a decent theory for why this payment is specifically for the campaign, while it would seemingly be perfectly legal any other day of the week for a Totally Upstanding Well-Known Businessperson and Public Figure.
Is it shady? Absolutely, but "running for office limits your otherwise-available personal publicity campaigning" seems a bit questionable under the generally-favored strict scrutiny for free speech questions. Which is part of why Citizens United came down the way it did: the government claimed then-extant election funding rules allowed them to ban books.
My understanding is that the motivation for it was specifically the impact it could have on voters, especially so close to the election (the payment was in late October). Rather than some general concern about Trump's image. I believe this specific concern is memorialized in contemporaneous communication by Cohen, Packard, and others.
As I mention in my original comment the manner in which Trump went about it is probably the whole issue. If he had decided to pay off Daniels out of his own funds there is probably no crime.
Isn’t the big problem for you that Trump seemed to try to keep this from coming out in 2011! That proves his motivation was not solely for the campaign.
And even then, see Brad Smith’s view on campaign contributions (ie he believes per se it isn’t a campaign contribution)
His motivation doesn't have to be solely the campaign for it to be a campaign contribution. If Cohen made a campaign expenditure on behalf of or in coordination with a campaign, then it was a campaign contribution.
Brad Smith former FEC chairmen appointed by Clinton explained that campaign expenses are things that a person (not the candidate) would only spend on an election (eg polls, fees directly related to the campaign). It would not include things like a nice suit even if the candidate purchased it solely with campaign in mind.
At best the law here is very convoluted. But we are to believe Trump and Cohen connected this scheme to try to keep Cohen out of hot water that may or may not exist even though Cohen didn’t testify “Trump did it for that reason.” Literally zero evidence on that point meaning per se the prosecution loses. But it doesn’t bother you?
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If it was so straightforward, how were there 34 separate charges?
But that's besides the point. I honestly don't know or care if he's guilty. The bigger issue is the political motivation of the trial. No one really believes that Trump would be prosecuted if he wasn't Trump. Biden is no doubt guilty of many felonies himself. The Clintons are as well. Yet they have not been prosecuted and for good reason. It is destabilizing. And even though Trump is being hoisted on his own petard here (lock her up!), it's still wrong to use the legal system to persecute your political enemies.
Political show trials are a feature of corrupt Latin American democracies. It's not a good sign that they have come to the U.S.
Is being someone's political enemy supposed to make you immune to the legal system?
Bob Menendez clearly hasn't made enough enemies.
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Honestly, I'd be great with applying the Trump standard to EVERYONE in Washington DC for a few decades.
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Uhh, those are some bold statements. Bill did get himself impeached for lying about his affair.
Trump has flagrantly played fast/loose with the law for years. He literally refused to cooperate when the feds said “please give the classified documents back.” His brazen approach was going to catch up with him.
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Because Trump paid Cohen in 11 checks, in response to 11 invoices from Cohen, which generated 12 ledger entries in Trump's business. Each fraudulent record is a separate charge.
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