By KENNETH DEL VECCHIO
When Michael Cohen’s offices and hotel room were raided in April by federal law enforcement officials, there was outrage – and rightfully so. The outrage was not warranted simply because a lawyer’s privacy had been invaded. Rather, it was warranted because the government was invading the very precious safeguards of attorney-client privilege under a cloak that Cohen, a lawyer, had likely committed crimes.
As it turns out, Cohen did perpetrate some criminal offenses. Yesterday, he pled guilty to multiple counts of tax evasion and bank fraud; the prosecution has a valid case against him for these offenses. He also pled guilty to making illegal campaign contributions, which was a specious legal disposition, at best. The guilty plea to that offense underscores the outrage that many inside (and outside) the legal community felt when Cohen’s properties were raided. Why?
Because in obtaining this particular allocution of guilt from Cohen, the prosecutors had relied upon evidence, including conversations between then-presidential candidate Trump and Cohen, that directly violated Donald Trump’s attorney-client relationship. This is not only a frightening affront to the president, but to all Americans.
Donald Trump’s sacred right to a confidential attorney relationship was obliterated in a zeal-infested pursuit by prosecutors to procure any information they could scrap up to implicate the president in the engagement of illegal activity. They sidestepped the prohibition against seizing and utilizing conversations and correspondences between attorney-client by asserting that the discourse between Donald Trump and Michael Cohen was in furtherance of a crime by and between them. Although such illegal conduct would cause the attorney-client privilege protections to be vitiated, there must be probable cause that the lawyer and client were actually involved in unlawful conduct together. With regard to the purported campaign finance violation charge that Cohen plead guilty to, as oxymoronic as it may sound, probable cause for a crime did not exist. This means that the government wrongfully interfered with Donald Trump’s privileged communications with his lawyer and, thus, serves as a threshold rationale for why any companion charge against the president would be unlawful. But there are several more relatable reasons why a case against Trump will fail, if it is predicated by this dubious Cohen plea.
It is universally understood that Michael Cohen, affectionately referred to as Trump’s fixer, had paid $150,000 and $130,000 to a nude model (Karen McDougal) and a porn star (Stormy Daniels), respectively. When Cohen elocuted to the judge – meaning when he told the court why he was guilty – he stated that he made these payments under the direction of Trump and for the purpose of influencing the 2016 presidential election. According to the prosecutors, as well as Cohen’s own attorney, Democrat operative Lanny Davis, these payments amounted to a crime. Illegal conduct was executed, they say, because the monies doled out considerably exceeded the cap that an individual can donate to a presidential campaign.
The maximum donation that a person can make to the election fund of a presidential candidate is $2,700 per election. Unquestionably, $280,000 in payments toward a campaign would far supersede the legal limits. But there are several massive roadblocks to a moral – and legal – attempt at charges against Donald Trump in connection to these payoffs:
First, the prosecution’s entire case appears to be a “he-said, he-said” case. While Cohen says that the payments were at the direction of Trump “for the purpose of influencing the election”, Trump will surely say the payments were not for that purpose. Prosecutions predicated upon one person’s word versus another are inherently unjust, as one can never truly prove guilt beyond a reasonable doubt under such unverifiable circumstances. For, who can ever know which person is telling the truth?
Another tragic flaw in this matter: Michael Cohen has no credibility. The soon-to-be disbarred lawyer had stated, on numerous occasions, that the payment made to Stormy Daniels was not at the direction of Donald Trump (and that Trump did not know about the same until afterward). Now, he claims that the payments to Daniels (and McDougal) were upon Trump’s orders. This flip-flopping, accompanied by several other apparent fabrications perpetrated by Cohen, render him incredible.
More so, how can anyone ever prove Donald Trump’s state of mind regarding why he would want payments made to Daniels and McDougal – meaning, even if he was aware of the payments, how can it ever be proved that they were issued “for purposes of influencing the election” versus “for purposes to protect his family and general reputation”? The answer is that such can never be proved, minus a smoking gun. Michael Cohen’s singular word certainly is not that smoking gun.
The dangerous slippery slope created through this charge and the ambiguity of the law itself are yet other massive hurdles in a potential prosecution against Trump for committing this alleged campaign finance violation. Albeit, Cohen pled guilty, but a law was indeed not broken by him in this instance.
First, there is nothing illegal in paying “hush money.” This is a media-manufactured sensation, perpetrated by either ignorant people or straight-up liars. “Hush money” – funds paid to individuals to keep quiet about a matter – is paid to settle cases, of every sort and type, thousands of times yearly; it is memorialized in court documents approved by scores of judges throughout the nation. “Hush money” is nothing more than payments made in exchange for confidentiality and the non-disclosure of information. Hush money is routinely paid by educational institutions, doctors, soda manufacturers, day care centers, corn farmers, home builders, and yes, even law enforcement agencies; it is paid by everyone and anyone. The media has dubbed disbursements for confidentiality/non-disclosure agreements as “hush money” in an effort to dupe people with an unsavory-sounding phrase, but the transaction is not only perfectly legal, it is totally normal.
The statute governing illegal campaign contributions is wildly broad and ambiguous, and it is a substantial overreach to employ it in Cohen’s case. In layman’s terms, who would think this type of payment violated campaign contribution caps? When Cohen issued these payments, his actions were those of an everyday attorney: he was settling cases. He paid out nuisance money – that’s all $280,000 is to a billionaire like Trump – as an ordinary course of business, to end a potentially embarrassing matter. The fact that the monies were paid during a presidential campaign is legally irrelevant. Trump, as well as an inordinate list of individuals and companies, settle such cases (over a wide array of topics) routinely—and they do so with a general purpose: to end a potentially embarrassing situation.
Invoking this campaign contribution statute to criminalize such matters that are so indirectly and tangentially related to a campaign creates a terrifying slippery slope that has never-ending implications against countless politicians and donors. The angry anti-Trump mob is so hateful, it has become blind and is willing to discard justice in their illicit pursuit to nail this man. They do not care, in this moment of a craze, what very dangerous slick-sloped ramifications this farcical guilty plea can create. It is instructive, if not critical, to evaluate other commiserate dealings to demonstrate just how legally irrational this “guilty” plea by Cohen was (and potential action against Trump for these payments).
Donald Trump and his companies, like most business leaders and corporations, have been involved in numerous ongoing lawsuits. What if Donald Trump and other principal shareholders settled a case during the presidential campaign? For example, what if they settled the Trump University lawsuit? Should the shareholders be charged with making illegal campaign donations because their portion of the settlement payment exceeded the $2,700 statutory limit? Should the lawyers handling the case be charged as conspirators? This, of course, is patently absurd. None of these people would be guilty of campaign finance violations because the case was resolved during the campaign, rather than after or before the campaign.
Let’s get real here: Michael Cohen didn’t think he was making a contribution to Trump’s presidential campaign when he paid $280,000 to Daniels and McDougal. He thought he was settling a case. The simple reason why Cohen pled guilty to a crime for these payments is because the prosecutors pressured him to do so. The actual offenses that Cohen committed (tax evasion and bank fraud) are of little consequence to these law enforcement authorities because they do not implicate the president. In order to involve him in Cohen’s legal woes, they needed to stretch, carve, and acid-wash the law. They needed to label ordinary legal dealings (paying nuisance settlement monies in exchange for a non-disclosure agreement) as a campaign finance violation.
So, Michael Cohen pled guilty to a charge that he could not possibly have had the mens rea (intent) to commit. Sure, in a global sense, one would understand that settling these cases could have some innocuous benefit to Trump’s campaign, but the existence of this indirect benefit is a far cry from causing these payments to be legally defined campaign contributions. There was an overall benefit to Trump, his family and businesses to settle these matters that can never be distinguished from the ancillary benefit their settlements had to the campaign.
For this last reason, alone, Trump is not culpable for any criminal offense, even if he instructed Cohen to make the settlement payments to the nude model and porn star. The prosecution would never be able to prove beyond a reasonable doubt that his purpose in making such payments was “to influence the presidential campaign.” Equally problematic for the prosecutors is that this is a “he-said, he-said” case – and the first “he”, Michael Cohen, has zero credibility. The entire lot involved with his guilty plea lacks legal credibility.
Cohen’s own lawyer, Lanny Davis, revealed his motivations for the guilty plea when he gleefully tweeted the following after yesterday’s court appearance:
“Today he stood up and testified under oath that Donald Trump directed him to commit a crime by making payments to two women for the principal purpose of influencing an election. If those payments were a crime for Michael Cohen, then why wouldn’t they be a crime for Donald Trump?”
Davis threw his client under the bus, assisting the prosecutors in obtaining this unsavory guilty plea for the political purposes of trying to make a case against Donald Trump – and not for seeking justice in a case against Michael Cohen.
Any potential case against Trump for unlawful campaign finance activity was poisoned at the onset of Cohen’s legal woes, via the government’s abolishment of Trump’s attorney-client privilege, when law enforcement improperly seized and utilized confidential communications in furtherance of their case. It worsened when the prosecution elicited the unfounded Cohen guilty plea for illegal campaign contributions (in face of apparently other sound charges). The frightening slippery slope has already been launched through this illicit action, but the decline of this slope can be straightened out by justice-seeking legal authorities: overriding prosecutors can dismiss the charges on their own motions, judges can dismiss the charges, juries can return not guilty verdicts, and Congress can enact new, narrow and clear laws. And oh, the president can deliver pardons.
The injustice of Michael Cohen’s guilty plea yesterday – and what may be so wrongfully sought against the president pursuant to it – very likely will be remedied by some, or even all, of the above. Why so optimistic? Because the matter is so obviously legally ridiculous – and there are more good people in America than bad.
Kenneth Del Vecchio, ESN publisher and editor-in-chief, is the author of some of the nation’s best-selling legal books, including a series of criminal codebooks published by Pearson Education/Prentice Hall and ALM/New Jersey & New York Law Journal Books. He is a former judge, a former prosecutor and a practicing criminal/litigating attorney for 24 years, wherein he has tried over 400 cases; he is partner in the prestigious law firm, Stern, Kilcullen & Rufolo. Mr. Del Vecchio is also an acclaimed filmmaker who has written, produced and directed over 30 movies that star several Academy Award and Emmy winners and nominees. His films are distributed through industry leaders such as Sony Pictures, NBCUniversal, Cinedigm, and E-1 Entertainment. He has starred in numerous movies, as well. A best-selling political thriller novelist, he penned his first published novel at only 24-years old. Additionally, Mr. Del Vecchio is the founder and chairman of Hoboken International Film Festival, called by FOX, Time Warner, and other major media “One of the 10 Biggest Film Festivals in the World.” A regular legal and political analyst on the major news networks, Mr. Del Vecchio formerly served as the publisher and editorial page editor for a New Jersey daily newspaper.
This article was originally published on August 22, 2018, the day after Michael Cohen plead guilty.
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