Trump Is Now an Unindicted Felon: US Attorney for Southern District of New York

By Juan Cole, Informed Comment

09 December 18

he Mueller sentencing document for Michael Cohen, Trump’s former personal attorney and fixer, is not nearly as important as that from the office of the United States Attorney for the Southern District of New York. Robert Khuzami, Thomas McKay and their colleagues not only laid out 5 major crimes committed by Michael Cohen but they established a basis for charging Donald J. Trump with a felony.

The US Attorney’s office maintained that Cohen’s payoff to Stormy Daniels and Karen McDougall in the days before the 2016 presidential election constituted an infraction against US election laws and that it was ordered by Donald J. Trump. It was illegal because it constituted an expenditure of funds to conceal a fact pertinent to the election from the public:

“During the campaign, Cohen played a central role in two similar schemes to purchase the rights to stories – each from women who claimed to have had an affair with Individual – 1 – so as to suppress the stories and thereby prevent them from influencing the election. With respect to both payments, Cohen acted with the intent to influence the 2016 presidential election . Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature , and t iming of the payments. (PSR ¶ 51 ). In particular , and as Cohen hims elf has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual – 1. (PSR ¶¶ 41 , 4 5 ).”

If what Cohen did was illegal, then he will now be sentenced for the deed. But what will happen to Individual-1 (Trump), who ordered him to commit the act?

It is a peculiarity of campaign finance law that those who violate it must do so in full knowledge that that is what they are doing, in order to be convicted. Usually, ignorance is not an excuse under the law, but in this case, it is.

Trump could conceivably avoid being indicted on violation of campaign finance laws on the grounds that although he told Cohen to break the law, he did not understand that he was thereby breaking the law.

Trump, however, repeatedly lied about the pay-offs to Daniels and to McDougall, which is strong evidence on the face of it that he knew they were illegal. Otherwise, why lie?

It is also possible that the FBI has corroborating evidence from Cohen or from papers in Cohen’s office, demonstrating that Trump knew that having these two potentially greedy or vindictive women out there on the eve of the election was dangerous to his prospects.

This is the first legal document I’ve seen from the Mueller probe that actually could result in jail time for Trump. It probably isn’t a serious enough and clear enough crime to turn the Republicans against him such that he could be impeached in the Senate. But if he ever goes before a judge, this sex cover-up on the eve of the election could be the end of him.

Appendix: US Attorney for Southern District of New York sentencing Memo for Michael Cohen:

4. Cohen’s Illegal Campaign Contributions On approximately June 16, 2015, Individual – 1, for whom Cohen worked at the time, began an ultimately successful campaign for President of the United States. Cohen had no formal title with the campaign, but had a campaign email address , and , at various times advised the campaign, including on matters of interest to the press. Cohen also made media appearances as a surrogate and supporter of Individual – 1. (PSR ¶ 39 ). During the campaign, Cohen played a central role in two similar schemes to purchase the rights to stories – each from women who claimed to have had an affair with Individual – 1 – so as to suppress the stories and thereby prevent them from influencing the election. With respect to both payments, Cohen acted with the intent to influence the 2016 presidential election . Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature , and timing of the payments. (PSR ¶ 51 ). In particular , and as Cohen hims elf has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual – 1. (PSR ¶¶ 41 , 4 5 ). As a result of Cohen ’s actions, neither woman spoke to the press prior to the election. (PSR ¶ 51 ). Cohen Causes the Magazine to Pay Woman – 1 I n approximately June 2016, a model and actress (“Woman – 1” ) began attempting to sell Case 1:18-cr-00602-WHP Document 27 Filed 12/07/18 Page 13 of 40 12 her story of her alleged extramarital affair with Individual – 1. Woman – 1 knew that the story would be of considerable value because of Individual – 1’s candidacy for president . Woman – 1 retained an attorney (“Attorney – 1”) to represent her in this matter. (PSR ¶ 41 ). Attorney – 1 then contacted the editor – in – chief (“Editor – 1”) of a popular tabloid magazine (“Magazine – 1”) and offered to sell t he story to Magazine – 1. The Chairman and Chief Executive Officer (“Chairman – 1”) of the media company that owns Magazine – 1 (“Corporation – 1”) had a prior relationship with Individual – 1 and Cohen . In August 2014, Chairman – 1 had met with Cohen and Individual – 1 , and had offered to help deal with negative stories about Individual – 1’s relationships with women by identifying such stories so that they could be purchased and “ killed. ” Consistent with that offer, after Editor – 1 told Chairman – 1 about Woman – 1’s story , they contacted Cohen to tell him about the offer. (PSR ¶¶ 40 – 41 ). At Cohen ’s urging and with his promise that Corporation – 1 would be reimbursed, Editor – 1 began negotiating the purchase of Woman – 1’s story. On August 5, 2016, Corporation – 1 entered into a n agreement with Woman – 1 to acquire the “limited life right s ” to the story of her relationship with “any then – married man,” in exchange for $150,000 and a commitment to feature her on two magazine covers and publish over one hundred magazine articles authored by her. The agreement’s principal purpose was to suppress Woman – 1’s story so as to prevent the story from influencing the election. (PSR ¶ ¶ 41 – 42 ). Between August 2016 and September 2016, Cohen agreed with Chairman – 1 to assign the rights to the non – d isclosure portion of Corporation – 1’s agreement with Woman – 1 to Cohen for $125,000. Cohen the n incorporated a shell entity called “Resolution Consultants LLC” to be used in the transaction. Both Chairman – 1 and Cohen ultimately signed the agreement , and a consultant for Corporation – 1, using his own shell entity, provided Cohen with an invoice for the payment of Case 1:18-cr-00602-WHP Document 27 Filed 12/07/18 Page 14 of 40 13 $125,000. That assignment was never completed, however. (PSR ¶ ¶ 43 – 44 ). Cohen Pays Woman – 2 On October 8, 2016, an agent for an adult film actress (“Woman – 2”) informed Editor – 1 that Woman – 2 was willing to make public statements and confirm on the record her alleged past affair with Individual – 1. Chairman – 1 and Editor – 1 contacted Cohen and put him in touch with Attorney – 1, who was also repre senting Woman – 2. Over the course of the next few days, Cohen negotiated a $130,000 agreement with Attorney – 1 to purchase Woman – 2’s silence. Cohen received a signed confidential settlement agreement and a separate side letter from Attorney – 1. (PSR ¶ 45 ). Cohen did not immediately execute the settlement agreement, nor did he pay Woman – 2. On the evening of October 25, 2016, with no final deal in place with Woman – 2, Attorney – 1 told Editor – 1 that Woman – 2 was close to completing a deal with a media outlet, un der which she would make her story public. Editor – 1 texted Cohen that “[w]e have to coordinate something on the matter [Attorney – 1 is] calling you about or it could look awfully bad for everyone.” Chairman – 1 and Editor – 1 then called Cohen through an encr ypted telephone application. Cohen agreed to make the payment and the n called Attorney – 1 to finalize the deal. (PSR ¶ 46 ). On October 26, 2016, Cohen emailed an incorporating service to obtain the corporate formation documents for another shell corporati on, Essential Consultants, LLC, which he had incorporated a few days prior. That afternoon, he directed that $131,00 0 from his HELOC – the same HELOC he had obtained by means of false statements, see p. 8 – 10 , supra – be deposited into an account he had just opened in the name of Essential Consultants LLC. The next day, Cohen wired $130,000 from that account to Attorney – 1. On the wire form, Cohen falsely indicated that the purpose of the wire was to pay a “retainer.” On November 1, 2016 , Cohen received copies of the final, signed confidential settlement agreement and side letter agreement from Attorney – 1. Case 1:18-cr-00602-WHP Document 27 Filed 12/07/18 Page 15 of 40 14 (PSR ¶¶ 4 7 – 50 ). After the election, Cohen sought reimbursement for election – related expenses, including the $130,000 payment he had made to Woman – 2. Cohen presented an executive of the Company with a copy of a bank statement reflecting the $130,000 wire transfer. Cohen also requested reimbursement of an additional $50,000, which represented a claimed payment for campaign – related “tech services . ” Executives of the Company agreed to reimburse Cohen by adding $130,000 and $50,000, “grossing up” that amount to $360,000 for tax purposes, and adding a $60,000 bonus, such that Cohen would be paid $420,000 in total. Executives of the Company decided to pay the $420,000 in monthly installments of $35,000 over t he course of a year. (PSR ¶¶ 52 – 53 ). At the instruction of an executive for the Company, Cohen sent monthly invoices to the Company for these $35,000 payments, falsely indicating that the invoices were being sent pursuant to a “retainer agreement. ” The Company then falsely accounted for these payments as “legal expenses.” In fact, no such retainer agreement existed and these payments were not “legal expenses” – Cohen in fact provided negligible legal services to Individual – 1 or the Company in 2017 – but were reimbursement payments. Cohen then received the $420,000 during the course of 2017. (PSR ¶¶ 5 4 – 56 ).