The problem with the case against Cohen

Discussion in 'Law & Justice' started by kazenatsu, Aug 22, 2018.

  1. kazenatsu

    kazenatsu Well-Known Member

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    First, a disclaimer. I'm not entirely familiar with the entire case against Cohen so I could be wrong about a number of things. If anyone has more information to add, please correct anything in this post that's wrong. The second thing, it's a kind of complicated case, so I won't be going into all the details, so a lot of this will be a vast oversimplification and summary.

    Michael Cohen, Trump's former lawyer, was charged with multiple crimes and recently pled guilty. (Let's not forget that pleading guilty doesn't necessarily mean they were actually guilty)

    As part of a plea bargain, Cohen pled guilty to 8 counts of campaign finance violations, tax fraud and bank fraud. Cohen is facing the possibility of 65 years in prison (which is the equivalent of a life sentence), though because he agreed to a plea bargain the prison sentence will likely be substantially less than that.

    But now getting into the details... Charges under the law are one thing, but what did Cohen actually do to merit those charges against him?
    Well, it turns out the actual connection between what the evidence shows he did and what all those charges are isn't the most clear.

    First, the campaign finance violation charges. The law says that campaign money cannot be spent on "personal uses" and it if it goes into a corporation it has to be reported. This seems reasonable enough, because if donors contributed to a candidate's campaign they wouldn't want that money siphoned off for someone's own use, and the government wants to track where all the campaign spending goes to help determine whether there was excess spending against the rules. But the motivations behind these laws do not so obviously apply in this case.

    Cohen paid $130,000 to a former porn star Stormy Daniels as hush money, to keep her quiet so there wouldn't be an embarrassing scandal for the Trump campaign. Paying someone money to keep quiet is not a violation of the law. However, Cohen was being paid out of the campaign finance funds for his legal services. Theoretically, if the funds were paid to Cohen for his legal services and then he paid Daniels out his own discretionary personal income, it would not be against the law. But in this case, it is alleged that Cohen was only being used as a conduit to channel campaign funds to Daniels. An important aspect to this was whether Trump authorized the payment. Cohen claims he did. A tape recording also supposedly exists recording Trump on the phone mentioning the payment to her.
    (Of course, it could also be possible Cohen could be misrepresenting what Trump actually said so the prosecutor will be likely to take it easier on him so he will get a reduced prison sentence. The testimony of defendants who are facing long prison sentences is not always reliable when incentive exists mistruth to be told)

    The law could be seen as a little bit vague with how it is being applied here.
    The legal question is whether the payment to Daniels came out of campaign finance funds. That's not altogether an easy to define question. For one thing, Trump had paid Cohen before out of his private personal funds, and for a second thing it might be possible to argue that Cohen paid Daniels out of his own personal funds. The payoff to Daniels was only a fraction of the amount of money Cohen was being paid, and Cohen may have hoped to gain favor with Trump so he would continue to be employed by Trump later. It's even possible the payment could be seen Cohen simply wanting Trump to win the election, and spending the money out of his own personal pocket in furtherance of making that happen. If, hypothetically, Cohen had paid off a woman that he himself had been having an affair with, there wouldn't be any legal basis for the charges, even though that money was ultimately coming from campaign funds.

    The other part of this is that the expenditure did not really represent "abuse" of the campaign money. It is easy to argue the money was spent in furtherance of the political campaign, because it is possible a scandal might have reduced the chance of Trump getting elected. In addition, in this case it's difficult to imagine the Trump supporters who donated to the campaign would not have approved of their money being spent to cover up a scandal. The campaign funds were not being misused or stolen. That is, even if it was technically against what the law says, the reasoning behind why that law was passed does not apply here. Viewed from one perspective, the violation Cohen was charged with stemmed from a legal technicality.

    As for the government tracking where campaign money goes, it was already reported that the money went to Cohen (for his legal services), so whether or not that money was passed on to some other use, the government already knew that this particular amount of campaign funds had been spent. It's not like passing this money on to Daniels concealed the amount of campaign money being spent.

    Moving on to the other charges, Cohen was also charged with tax fraud. Cohen received a lot of suspicious and highly ethically questionable payments from different corporations, supposedly for "consulting fees". (This isn't that uncommon of a practice, it's a similar situation for Hillary Clinton and Obama's wife) One of these consulting fees was especially high, $500,000 and came from an investment firm with indirect ties to a Russian billionaire. So it does look very suspicious and unethical. But from all the articles about this I've read through, I haven't seen any real tangible evidence that there was something that clearly constituted tax fraud. In other words, what Cohen did in relation to taking these payments was wrong, but not clearly illegal.

    One of Cohen's partners in another business, Evgeny Freidman, is being charged with tax evasion in New York, and gave testimony against Cohen in exchange for a reduced prison sentence. (So, again, possibly not reliable because there was incentive to give false testimony)

    So, in conclusion, it seems like the evidence and logic behind the charges against Cohen may not be the most clear. Or at least, nothing that I've read in any news article contains enough evidence that would justify these charges against Cohen, in my opinion, if I was the one deciding the case, although I can also see why a jury might choose to have convicted.

    It is believed the prosecutor, Mueller, probably wanted to get a conviction so that he could pressure Cohen to give testimony that could be used against Trump. So there is a very strong ulterior motive behind the prosecution of Cohen.

    The one tangible bit of evidence I have read is that Cohen may have misrepresented his financial situation to get loans from banks. Part of this stems from what is sort of a technicality regarding "owner occupancy" in one of the apartments he owned, and the evidence for the rest comes from the testimony of his accountant who, no surprise, gave testimony against Cohen in exchange for immunity (to avoid being prosecuted himself).
    Some punishment would be appropriate for this, in my opinion, but it doesn't seem like the strongest case.
     
    Last edited: Aug 22, 2018
  2. Margot2

    Margot2 Well-Known Member

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  3. kazenatsu

    kazenatsu Well-Known Member

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    That tax amount is only a small fraction of how much the entire business is worth. If prosecutors went that aggressively after every large business owner, it's likely a large percentage of them could be charged. It doesn't mean they knowingly were trying to intentionally break the law.
    Making this more complicated, Cohen had a partner in the business who may have been falsifying the records, so it could be that Cohen didn't even know about it (although you could argue it was his responsibility to know).

    I don't have all the details and information in front of me to look at (and even if I did I probably wouldn't have the time to thoroughly go through it all), but I'm still not convinced this prosecution isn't politically motivated.
     
    Last edited: Aug 22, 2018
  4. WillReadmore

    WillReadmore Well-Known Member

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    Please cite evidence that there has been a plea bargain with Cohen concerning the 8 counts to which he plead guilty.
     
  5. kazenatsu

    kazenatsu Well-Known Member

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    It could be an unofficial plea bargain, with an implicit unsaid assumption that if the defendant does what the prosecutor wants the prosecutor will take it easier on them.

    I think it's fair to say there is fairly good reason here to believe that such an assumption would likely be true.
     
    Last edited: Aug 23, 2018
  6. WillReadmore

    WillReadmore Well-Known Member

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    I see.

    So, you think there COULD have been such a deal!

    That does match the rest of your post in terms of logic.
     
  7. kazenatsu

    kazenatsu Well-Known Member

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    Last edited: Aug 23, 2018
  8. WillReadmore

    WillReadmore Well-Known Member

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    Saying there is a "deal" means to me that there is a quid pro quo.

    From your second cite:
    "Cohen’s deal does not include an agreement to cooperate with prosecutors, as we might have expected."

    I can accept that someone could consider ANY guilty plea as a deal in some way. But, I think it is important to distinguish cases where there has been a deal that involves cooperation or some other quid pro quo.

    The UK article is the first time I have heard anyone in the press, the courts or Cohen's people suggest that there was a deal where Cohen did something while expecting someone else to do something because of that. In fact, Cohen and his lawyer have stated that there was no deal with prosecutors.
     
  9. kazenatsu

    kazenatsu Well-Known Member

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    I still think it is reasonable to assume there is an implicit expectation that if Cohen provides damaging testimony against Trump, the prosecutor will not push the judge for a long sentence.

    Threats or deals don't always have to be explicitly stated.

    Judges tend to be pretty busy so usually rely a lot on the recommendation of the prosecutor. Prosecutors can paint a defendant as the worst person in the world and get the judge to sentence them to a lot of prison time, so in actual practice prosecutors usually have a huge amount of influence on what the sentence will be. Since Cohen is a lawyer, by profession, he certainly realizes this.
     
    Last edited: Aug 23, 2018
  10. WillReadmore

    WillReadmore Well-Known Member

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    I agree. We see that at every level in our justice system. Those who turn state's evidence, plead guilty, etc., are almost always given some level of reprieve.

    But, let's not get too carried away. It IS interesting (maybe even important) that Cohen has no deal so far. If he DID have a deal, it would be interesting to know what the heck it was.

    I'd note that when NY let it be known that they wanted to talk to Cohen about insurance wrong doing, Cohen traveled to NY and showed up at the NY tax offices without his lawyer and declared himself ready to talk!!!

    There is NOTHING even slightly expected or common about that!
     

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