No, Cohen’s Guilty Plea Does Not Prove Trump Committed Campaign-Finance Crimes

Unpacking a weak argument for Alvin Bragg’s weak case against the former president

F or many years, Michael Cohen reveled in his notoriety as Donald Trump’s “fixer.” It is safe to say that it was not Cohen’s legal acumen that brought him into the New York real-estate magnate’s circle. His credentials are unimpressive, and what’s known about his ambulance-chasing law practice seems dodgy. When it emerged that he was under investigation in 2018, we learned that he had virtually no clients and that the fraud schemes being scrutinized by federal prosecutors from my old shop (the U.S. attorney’s office for the Southern District of New York, or SDNY) had little or nothing to do with either the practice of law or Donald Trump.

Cohen is the central witness in elected Democratic prosecutor Alvin Bragg’s unabashedly partisan and legally farcical prosecution of Trump in the Stormy Daniels caper. That is both good for Trump and bad for Trump — good because Cohen’s creepy background, crowned by his fraud and perjury convictions, makes him an utterly unreliable witness; bad because prosecutors will be able to argue that, if they have a case, it is in the Trump organization documents they’ve obtained rather than the witness testimony, and — more to the point — it is Cohen’s very loathsomeness that attracted Trump to him. The Donald was perfectly content to have Cohen as his sidekick, confidant, and attack dog for over a decade. Every time Trump’s defenders slam Cohen they are unwittingly taking a whack at Trump himself . . . and reminding Americans of the kinds of loyalists they could expect to see in the to-me-still-inconceivable event of a second Trump administration.

But that’s tomorrow’s news.

In the here and now, let’s stick with this: No one who has been tied to Michael Cohen — from Trump himself to such Trump antagonists as Clinton apologist Lanny Davis — has ever come to him for Grade-A legal counsel. And if we could find an area of law in which Cohen had genuine expertise — other than, say, extortion — we can safely bet it would not be the esoterica of federal campaign-finance regulation, a subject matter so abstruse that, in the case of Democratic presidential candidate John Edwards, the Federal Election Commission and the Department of Justice could not agree among themselves whether the law had been broken. (But don’t you worry — Alvin Bragg, who has no jurisdiction to enforce federal law and about as much expertise in it as Cohen, is all over the Stormy caper!)

It has been amusing, then, to observe the Lawyer Left’s latest pushback against the inconvenience that Bragg’s campaign-finance allegation against Trump — which is critical to his crusade to inflate a time-barred, misdemeanor business-records infraction into a (maybe) barely live felony — is probably dead on arrival. We can be confident that there were two campaign-finance felonies, they tell us, because Cohen pled guilty to them in a prosecution brought by Trump’s own Justice Department.

Where to begin?

Obviously, if it were true that the judgment of the Justice Department and its notoriously aggressive SDNY prosecutors were dispositive, then the case against Trump should be considered closed right now. It’s not enough to say that the same prosecutors who squeezed the guilty pleas out of Cohen, and who were trying very hard to make a case against Trump, decided in the end that there was no case to bring. Beyond that, you may have heard that the Justice Department has been under new management since January 20, 2021. In the ensuing 27 months, although we know it is moving energetically to nail Trump on everything from the Capitol riot to the Mar-a-Lago classified documents, the Biden Justice Department has never alleged that Trump’s hush-money arrangements with porn star Stormy Daniels and Playboy model Karen McDougal constituted campaign-finance violations.

Ah, but then comes the Democrats’ rejoinder: Cohen himself admitted his guilt to these “crimes.” As legal eagle Adam Schiff puts it, prosecuting Trump for campaign-finance violations would merely be a matter of nailing the principal for the crimes that Cohen, his poor sap toady, has already acknowledged committing.

And who could be more of an authority on campaign finance than Cohen, right?

Please. First, even if this argument could be taken seriously (it can’t), federal campaign-finance laws operate differently depending on whether one is in the position of a donor of alleged in-kind contributions or of the candidate. The former is burdened by strict donation limits; the latter is not. Moreover, when the alleged in-kind contribution is not patently campaign-related — i.e., when it is earmarked for expenses the candidate would have even if there were no campaign, as opposed to traditional campaign expenses such as polling or ads — then the intent of the donor could well be very different from that of the candidate. Even if the donor is motivated to see the candidate prevail in the election (as Cohen clearly was, since he hoped a Trump presidency would become a gravy train for him), the candidate could be motivated by whatever drove him to take on the expenses in question (as Trump contends the nondisclosure agreements were to spare his wife, his family, and his reputation from humiliation — which, regardless of whether Trump is lying, is a common reason why people and businesses with a lot to lose enter into and pay dearly for NDAs).

Now, here’s why the Cohen-pled-guilty claim can’t be taken seriously.

While his apologists would like us to develop amnesia about this history, Cohen did not plead guilty in federal court because of campaign-finance violations, which were merely an opportunistic add-on. Cohen pled guilty because the SDNY had him dead-to-rights on serious fraud charges.

Cohen committed bank fraud in connection with a multimillion-dollar line of credit. Bank fraud carries a penalty of up to 30 years’ imprisonment. As the most severe offense he faced, it was the driver of the federal sentencing guidelines that would apply to his case. Cohen’s crimes were not sufficiently heinous that he was going to be sentenced to anything close to 30 years; but once a 30-year crime was in the mix, it didn’t much matter to his ultimate sentence whether he pled guilty to ten less-egregious offenses, no such offenses, or something in between.

In addition to the bank fraud, Cohen pled guilty to five counts of tax evasion, each carrying a potential five-year prison term. By the Justice Department’s description, these felonies involved over $4 million in unreported income. The evidence of what the SDNY called “The Tax Evasion Scheme” covered four years. If the case had ever gone to trial, that fraud scheme would have been the framework within which the SDNY unfolded its bank-fraud proof. That was the heart of the Cohen prosecution.

That is why Cohen pled guilty. He was looking at years of incarceration. And as is common when a suspect is in such straits, Cohen desperately sought to become a cooperating witness for the government. Why? Because under the federal sentencing guidelines, if the prosecutors can be persuaded to file a pre-sentencing motion attesting to the court that the defendant has provided substantial assistance in the investigation or prosecution of other suspects, especially suspects higher up in the food chain, the judge is then authorized to ignore the sentencing guidelines and impose a sentence of no jail time — or, at least, minimal jail time.

Cohen was trying to sell himself as a cooperator. But here’s the problem: The guy the prosecutors wanted to nail was Trump, and Trump was not complicit in any of the tax- and bank-fraud schemes at issue in Cohen’s case.

To the extent that Cohen was relevant, all the SDNY had on Trump were these hush-money arrangements. Since NDAs are not illegal, the question was how to transform them into crimes. The only way to do that, the creative SDNY prosecutors decided, was to invoke the campaign-finance laws. But to say that was a stretch is putting it mildly. The NDAs were not traditional campaign expenses. Yes, the women involved turned up the heat during the campaign, extortionately threatening to go public, which might have torpedoed Trump’s presidential bid in the wake of the infamous Access Hollywood tape. But this was just commonsense hardball, striking when their leverage against the notoriously parsimonious Trump was at its height; it didn’t mean that NDAs — which Trump had plenty of other personal, political, and business incentives to pay for — were necessarily in-kind campaign expenses.

On this, the law was not on the SDNY’s side. But the prosecutors did have Cohen over a barrel. So they held the carrot out to him, but made no firm promises: Plead guilty to two campaign-finance felonies (the Daniels and McDougal NDAs), implicate Trump in the underlying schemes, and they’d consider giving him a cooperation agreement.

It was a no-risk calculation on both sides. For Cohen, the campaign-finance counts, which carried five-year maximum sentences, involved amounts of money that were minor compared to the fraud counts. They would thus have no material impact on whatever sentence was imposed. More to the point, Cohen was trying to avoid prison all together, and this was his only shot at a cooperation agreement.

The SDNY, meanwhile, for case-building and public-relations purposes, would get Cohen, a key participant, to brand the scheme as a pair of campaign-finance felonies in which Trump was the main culprit; but the allegations would never be tested at trial because Cohen was pleading guilty. Even better, in pleading guilty, Cohen would also waive his right to appeal, so if the district court accepted his plea (which it did), the dubious campaign-finance counts would never be reviewed by the Second Circuit appellate court, let alone the Supreme Court.

In the end, the Cohen/SDNY deal went about as well as the Trump/Stormy deal. Cohen did not get his cooperation agreement (even after upping the ante by agreeing to plead to a perjury charge in the Mueller investigation) and was sentenced to three years’ imprisonment because of his frauds. He now claims the SDNY double-crossed him, and he has suddenly decided he wasn’t guilty after all of the tax-evasion charges to which he pled guilty — a posture that not only further weakens him as a prosecution witness for Bragg, but must also be a source of at least some embarrassment for those who now argue that the campaign-finance crimes were real because Cohen admitted to them when he pled guilty.

As for the SDNY, after a great deal of effort, prosecutors dropped the campaign-finance investigation of Trump because the case just wasn’t there — at least not until Manhattan’s progressive prosecutor came along.