22 August 2018

More Convictions, More Guilty Pleas, Still No Evidence Against Donald Trump

Last month--July, 2018--I observed that, despite nearly two years of investigation, there was as yet no credible case of wrongdoing to be made against President Trump.

At the time, Paul Manafort's trial had not concluded, and Michael Cohen had not entered any guilty pleas. Now, Paul Manafort has been convicted on 8 counts of tax evasion and bank fraud, and Michael Cohen has pleaded guilty to tax evasion, lying to investigators, and, intriguingly, two counts of campaign finance violations.

Does this mean the "beginning of the end" for President Trump?  On the facts, Trump's demise seems as remote now as it did last month.

Manafort's offenses took place years before he became involved in the Trump campaign--his convictions, while of some comfort no doubt to Mueller, do not advance in any way a case against the President.  They do not bolster claims of "collusion" or of conspiracy, nor do they build a case of obstruction of justice. As big a headline as Manafort's conviction is, in the ongoing effort to unseat Donald Trump his conviction is simply not relevant.

Arguably, Michael Cohen's plea deal does create a legal issue for Donald Trump, but while Cohen is now alleging Donald Trump violated campaign finance laws, the best witness against Michael Cohen is none other than....Michael Cohen.

Previously, prosecutors have alleged that Cohen made payments to two women in order to buy their silence about alleged extramarital affairs with Donald Trump many years ago, and that he was repaid by the Trump campaign through a set of "sham" invoices submitted by Cohen for legal work. Cohen himself recorded a conversation with Donald Trump where they discussed one of the payments.  Yet that recording--quite unlike the recordings that doomed Richard Nixon during Watergate--have shown to have exactly zero traction as proof of malfeasance by Donald Trump.

Further, Michael Cohen has made numerous public statements denying the very thing he is now alleging.  We must therefore ask the question "was he lying then, or is he lying now?" With federal prosecutors threatening him with decades of jail time, the notion that he might, in the vernacular popularized by Alan Dershowitz, "not merely sing, but compose" is not at all unreasonable--a possibility that is strengthened by the fact that one of the offenses to which Cohen has pled guilty is lying to investigators; it is hard to fathom how a witness who is an admitted liar can enjoy much credibility at trial.

Finally, there is the reality of Michael Cohen being a lawyer and Trump's "fixer". As a lawyer, one of Cohen's ethical obligations to his client is to advise him of when a particular course of action is against the law, and to guide him so as to avoid violating the law. The crux of the prosecution's allegations of campaign finance violation is that Cohen was repaid by the Trump Campaign, as opposed to the Trump Organization--which would have not been subject to the same scrutiny regarding campaign finance law.  In other words, it is not the payments themselves that were illegal, but that they were paid out via a political campaign entity and not a private business.

Thus we have the conundrum that if Cohen knew or had reason to believe the campaign paying off the two women was an illegal activity, why did he a) not advise Trump to take a different tack on the matter, or b) bill the Trump Organization or even Donald Trump personally for reimbursement? By the same token, if a member of the bar submitted invoices to the Trump Campaign for reimbursement of expenditures in this fashion, is it unreasonable to impute from those invoices the likelihood that Cohen did not consider the modality of payments to be illegal?  

That Donald Trump largely self-funded his campaign only makes the legal case against him even murkier--ultimately, the argument that Cohen might simply have been repaid from the wrong checking account cannot be dismissed. Impeachment over what amounts to a bookkeeping error is too absurd even for the most rabid of Never Trumpers.

As for the payments and the extramarital affairs, the legal assessment of both, as well as their potential for supporting impeachment, can be summed up as "so what?" For all society's railings against adultery, it is not a crime. Buying silence--especially when the payments were solicited by the women involved, as is the case here--is also not intrinsically criminal.  In neither case did Donald Trump suborn perjury or encourage anyone to make false statements to law enforcement.

Moreover, President Obama received the largest FEC fine in history for improprieties in how his 2008 campaign handled contributions, and no one--not even the most strident of Obama critics--mentioned impeachment over the matter.

As a practical matter, when evidence is murky and unclear, that becomes "reasonable doubt" to a jury. Despite the fulminations and jeremiads against Trump coming on the heels of Cohen's guilty plea, the reality of Cohen's latest statements is that they are murky and unclear, and easily challenged by Cohen's previous testimony (some of which may have been under oath before Congress, raising the specter of perjury charges). Cohen himself is a damaged witness of dubious credibility.

Unless more damaging material comes to light, either in regards to Cohen's allegations or to any other matter under scrutiny by the Mueller investigation, we still do not have clear evidence of any crime committed by Donald Trump.

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