Prosecutors Overreach in Their Case Against Michael Cohen

August 22, 2018 Updated: September 4, 2018

Commentary

On Aug. 21, former Trump lawyer Michael Cohen accepted a plea agreement offered to him by the Southern District of New York (SDNY) prosecutor’s office.

Cohen will be sentenced on Dec. 12 and the plea agreement let him avoid the maximum sentence he was facing of 65 years in prison. According to The New York Times: “The government calculated the sentencing guidelines at from 51 to 63 months and the defense put it at 46 to 57 months. A final guidelines determination will be made by the Probation Department, but the ultimate sentence will be determined by Judge Pauley.”

Cohen pleaded guilty to a raft of charges to get a reduced sentence for tax and bank fraud. He was facing 65 years altogether, and the evidence showed he did commit most of the crimes for which he was charged. However, the one charge that is getting the most media play is the one he wouldn’t have been convicted of.

That’s the eighth count, in which the SDNY makes the novel claim that Cohen’s payment to Stephanie Clifford, also known as porn star “Stormy Daniels,” was a “contribution” to the Trump election campaign and it was over the legal limit.

The plea agreement states: “Count Eight of the Information charges the defendant with making an excessive campaign contribution, on or about October 27, 2016. … Count Eight carries a maximum term of imprisonment of 5 years; a maximum term of supervised release of 3 years; a maximum fine of $250,000, twice the gross pecuniary gain derived from the offense, or twice the gross pecuniary loss to persons other than the defendant resulting from the offense, and a $100 mandatory special assessment.”

Well, how do the prosecutors handling Cohen’s case know that payment of hush money to Clifford was a campaign contribution? Simple: because they say it is, so that must make it so, and that’s good enough for them.

It’s also good enough for the media, which spent all day running with the story and waving it like a bloody shirt because supposedly it at last ties Donald Trump to some kind of illegal activity related to his presidential campaign. In Cohen’s statement in court, the prosecutors even had him state that he and his client made a $130,000 payment to “influence the election.”

What’s being overlooked, perhaps deliberately, by Democrats and their mainstream media allies, is that the prosecutors didn’t actually have to prove this bogus charge in the courtroom. Cohen had already given up the ghost. He knew the prosecutors had him cold on the bank and tax fraud crimes, so he was going to accept whatever plea deal they offered him, no matter how it read, in exchange for a reduced sentence.

I’m seeing a lot of media coverage where it’s expected that the next step will be charges filed against President Trump for directing Cohen to make this payment to Clifford because it was a “federal law” or “campaign finance” violation.

Here’s why that won’t happen: Trump would fight this every single step of the way. The prosecutors would have to prove in a courtroom the payment was a campaign contribution. Just claiming it was wouldn’t get them anywhere.

One former FEC chairman, Bradley Smith, has already publicly gone on the record with Mark Levin and stated this isn’t a campaign finance violation no matter how badly some people want it to be. Smith even wrote an op-ed in The Wall Street Journal back on April 10 making this very point, after an audio tape of Cohen and Trump discussing such payments was made public.

Even supposing that with some slick lawyering the prosecuting team managed to turn the payment into a campaign contribution, the result would be the Trump campaign paying a fine. Cohen is going to jail for tax and bank fraud, not this ridiculous count that the prosecutors got him to cop to in order to get a reduced sentence.

It was already known months ago that Cohen had used his own money to make this $130,000 payment to Clifford, and that he then sent a bill to Trump who reimbursed him. Wealthy people paying off gold diggers to go away happens all the time. Cohen never worked for the Trump campaign, never had access to Trump campaign accounts, and didn’t use any money donated to the Trump campaign to make this payment.

Maybe the prosecutors in New York think they can wave a magic wand and instantly transform that payment into a campaign contribution, but they have yet to try to make that case in a courtroom.

So the prosecutors may believe it was a campaign contribution, and they can even force Michael Cohen to say in court this payment was a campaign finance violation so he can get the reduced sentence they promised him. That doesn’t make it so, and I believe subsequent events will demonstrate this.

What most of this media firestorm boils down to is that the SDNY office decided to use a plea agreement as a venue for some very dishonest politicized grandstanding.

Brian Cates is a political pundit and writer based in southern Texas and the author of “Nobody Asked For My Opinion … But Here It Is Anyway!” He can be reached on Twitter at @drawandstrike

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