Cohen’s Punishment Had Little to Do With Campaign-Finance Violations, Sentencing Experts Say

December 13, 2018 Updated: December 18, 2018

Despite being the focus of the media spectacle surrounding the sentencing of Michael Cohen, campaign-finance violations factored very little in the three-year prison term issued to him Dec. 12, according to a review of court documents and interviews with sentencing experts.

A federal judge in New York sentenced Cohen to three years in prison and ordered him to pay $2 million in fines, forfeitures, and restitution for tax evasion, making false statements to a bank, campaign-finance violations, and lying to Congress.

Media reports of the sentencing focused largely on the campaign-finance violations, because those involve Cohen’s past work as a personal attorney for President Donald Trump. But an Epoch Times analysis—reviewed by a sentencing expert—indicates that campaign-finance violations account for roughly six of the 36 months Cohen is to serve in prison and about $10,000 of the $2 million in restitution, forfeitures, and fines Cohen was ordered to pay.

“I would suggest the three-year sentence was primarily based on the other crimes that he committed while he was a lawyer: the evasion, the lying, et cetera,” Justin Paperny, a sentencing expert with Prison Professors, told The Epoch Times. “I think that was the driver in the sentence, not necessarily the campaign finance.”

Paperny added that U.S. District Judge William Pauley is tough on white-collar defendants in positions of authority, including lawyers.

“I think the tax evasion and the lying was the driver in this sentence, especially with this judge,” Paperny said.

John Webster, a sentencing expert and the managing director of National Prison and Sentencing Consultants, said that it’s difficult to determine how much each crime accounted for in Cohen’s total sentence, but opined that the campaign-finance violations accounted for “very little” of the three-year term.

“My opinion is the campaign violations accounted for very little of his sentence because he had some pretty significant tax evasion and fraud counts in there,” Webster said.

Prosecutors set out the initial calculation for Cohen’s sentence in his plea deal (pdf), where Cohen admits to tax evasion, making false statements to a bank, and campaign-finance violations. The prosecutors grouped Cohen’s crimes based on the U.S. sentencing guidelines and determined the base level of offense by singling out a crime category which carries the highest sentence.

In Cohen’s case, a grouping linked to making false statements to a bank carried the toughest sentence. The grouping, referred to as 2B1.1 in the sentencing guidelines (pdf), includes crimes like fraud, deceit, and embezzlement, but not campaign-finance violations.

Prosecutors determined Cohen’s base level of offense as seven using the guidelines and added 16 more offense levels based on the sum of money involved in the crime. According to Webster, the campaign-finance violations, regardless of the amount, do not impact the 16-level calculation.

Prosecutors then added four more offense levels exclusively related to campaign-finance violations, saying that Cohen’s wrongdoing was amplified by the use of sophisticated means and his skills as a lawyer.

As a result, based on the sentencing calculations in the plea deal, the campaign-finance charges resulted in four of the 24 offense levels. Translating that to the three-year sentence, Cohen will serve roughly six of the 36 months of his sentence for campaign finance violations.

Cohen’s $1.4 million restitution payment is also unrelated to his campaign-finance violations. He is to pay the IRS for the taxes he evaded, according to the judgment order (pdf). The $500,000 forfeiture and one of the $50,000 fines likewise have nothing to do with the campaign-finance violations. According to the judge’s order (pdf), Cohen is to make the forfeiture to U.S. Marshals in connection to false statements he made to a bank. The $50,000 fine is in connection to lying to Congress, according to the second judgment order (pdf).

Campaign-finance violations do figure, to a limited extent, in the second $50,000 fine. Using the sentencing calculation from the plea deal, less than $10,000 of the fine is likely related to campaign-finance violations.

In addition to playing a minor role in determining Cohen’s sentence, the campaign-finance charges are likely not crimes, according to former Federal Elections Commission Chairman Bradley Smith.

In charging Cohen, the prosecutors cited a broad legal definition of what counts as a campaign contribution but omitted a specific prohibition on the personal use of campaign funds, which disqualifies the payment as a contribution.

Defined broadly, anything of value used to influence any federal election counts as a campaign contribution. But the personal-use prohibition in the same law narrows the scope to exclude all payments “that would exist irrespective of the candidate’s election campaign.”

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