A Manhattan federal judge finds that Trump’s former ‘fixer’ has committed perjury . . . again.
The criminal trial of Donald Trump that was supposed to get underway in Manhattan next Monday is postponed until at least April 15 over a discovery dispute. But when the festivities finally begin, Bragg’s star witness will be Michael Cohen, Trump’s former lawyer and self-described “fixer,” who made the hush-money payment and received the reimbursement payments that are the grist for district attorney Alvin Bragg’s case.
Cohen is once again in the news, as always for all the wrong reasons. To describe him as the perfect witness for Bragg’s absurd prosecution may be an understatement.
Naturally, “Stormy Daniels” gets most of the attention. She is the porn star whose threats to go public before the 2016 election about a tryst with Trump a decade earlier led Cohen to pay for her silence. Trump, not very convincingly, denies the affair with Stormy, whose real name is Stephanie Clifford. While many are anticipating her possible trial testimony with glee, she is really not a necessary witness.
The charges are built on Cohen.
He is expected to testify that he paid Clifford $130,000 at Trump’s direction on October 26, 2016, just days before the election, and that he was reimbursed in installments from February through December 2017. Ergo, the reimbursements were satisfaction of a debt Trump owed, but Trump booked the installments as if they were fee payments for ongoing legal services. That is the basis for Bragg’s allegation that Trump falsified his business records.
Ordinarily, that is a misdemeanor — a trifling crime rarely prosecuted in a city that has serious crime problems (and in a borough that sports a progressive prosecutor who prefers not to prosecute). But Bragg, an elected Democrat, has not only indicted the case against his party’s main political rival; he is also charging it as a felony — actually, 34 felonies — by invoking a statutory enhancement applicable to defendants who falsify their records with the fraudulent intent to conceal another crime. Bragg will allege that the other crime is a federal campaign-finance violation.
Putting aside for now whether Bragg, as a state prosecutor, has authority to prosecute a federal crime (I’ll discuss that in more depth over the weekend), Bragg’s theory relies on Cohen. Although non-disclosure agreements — the non-pejorative term for “hush money” arrangements — are perfectly legal and common, Cohen pled guilty to a federal campaign-finance crime based on his payment to Clifford.
At the time, looking at a stiff sentence for tax and fraud crimes but realizing federal prosecutors in the Southern District of New York were trying to build a case against then-president Trump, Cohen tried to sell himself to the SDNY as a useful cooperating witness. For reasons I’ll discuss in Saturday’s column, Cohen’s say-so that his payment was a campaign-finance crime doesn’t make it true. The SDNY knew it was playing a weak hand and that relying on Cohen, with his track record of deceit, would be a mistake. The prosecutors thus dropped their election-law investigation of Trump and declined to enter a cooperation agreement with Cohen, who was sentenced to three years’ imprisonment on tax-evasion, fraud, and false-statements charges.
In the latest Cohen news, Judge Jesse Furman of the SDNY declined on Thursday to lift post-incarceration restrictions on Cohen, noting his most recent perjurious episode.
The background here is classic Cohen. Judge Furman decided not to take action against him and his lawyer based on a bogus court filing. Cohen, whose previous violation of his release conditions resulted in his being sent back to prison for a time after his release, has been trying to get his release conditions — which include monitoring by the Probation Office — removed. Being a crafty lawyer himself, Cohen decided to “help” his defense attorney, David Schwartz, by doing some research. Using an AI program called Google Bard, Cohen generated what turned out to be fake legal citations; Schwartz then incorporated the fake citations into the brief that was submitted to Judge Furman. This, naturally, resulted in humiliation when what they insist was an innocent error was discovered.
While Furman accepted their explanation, he was not so receptive to Cohen’s touting of his testimony in New York attorney general Letitia James’s recent civil-fraud trial against Trump (the subject of Rich’s column today, and of our discussion on the podcast).
As the New York Times reports, Cohen’s lawyer, David Schwartz, maintained that Cohen’s testimony illustrated his “willingness to come forward and provide truthful accounts,” demonstrating “an exceptional level of remorse and a commitment to upholding the law.”
Au contraire, replied Judge Furman. He pointed out that Cohen now not only claims to have been innocent of the tax-evasion crime to which he pled guilty; Cohen also testified in the civil-fraud trial that he committed perjury, repeatedly, when he pled guilty in federal court.
As ABC News recounts, Furman opined that “Cohen repeatedly and unambiguously testified at the state court trial that he was not guilty of tax evasion and that he had lied under oath.” Hence, Furman concluded, Cohen’s state trial testimony “gives rise to two possibilities: one, Cohen committed perjury when he pleaded guilty [in federal court] or, two, Cohen committed perjury in his October 2023 testimony” in state court.
A convicted perjurer perjuring himself about his filing of false tax returns is quite the, um, conundrum.
As I’ve argued, Cohen pled guilty to campaign-finance violations not because he committed them (which I don’t believe he did) but because he knew the SDNY prosecutors were trying to make a case on Trump. As a practical matter, the campaign offenses didn’t make any difference to his sentence — his sentencing guidelines were driven by the fraud charges (lying to banks) and tax evasion on $4 million in unreported income. (See the SDNY’s press release about the guilty plea.)
Cohen later pled guilty to making false statements to Congress in connection with the Mueller investigation. In that instance, yet again, far from being worried that an additional conviction would result in a harsher sentence, Cohen was trying to persuade Mueller’s team that he could be a valuable cooperating witness, in hopes of getting sentencing leniency.
Obviously, the SDNY realized that Cohen had too much unsavory baggage to be a convincing witness — particularly in a historic case against a former American president. So the prosecutors not only ditched Cohen, they excoriated him in the sentencing memorandum they filed with the court. Judge William Pauley (since deceased) observed in imposing sentence that “Cohen pled guilty to a virtual smorgasbord of fraudulent conduct.” I believe the sentence would have been more severe than the three years Pauley meted out had Trump — then president — not moronically run off at the mouth about how “weak” Cohen was for flipping on him.
Whether Judge Furman’s findings will induce the SDNY to file new perjury charges against Cohen, and whether this development will give Alvin Bragg pause about making Cohen the centerpiece of a prosecution that will define the ambitious DA’s career, is anyone’s guess.