*Published with the generous permission of Teri Kanefield. Read all of her writing here.
By Teri Kanefield
It’s Trump’s first criminal trial, but not his first trial: a jury found him liable for sexual assault, the Trump Organization was convicted on 17 felonies, and the State of New York won a $355 million civil fraud verdict against him, and more. But now we come to the first criminal proceeding against Trump himself.
Any legal analysis must begin by laying out the facts.
Keep in mind that the “facts” as we know them from newspaper reporting, statements people make in public, or the indictments have not yet been presented or proven in court. Much of what we take as “facts” would not be admissible as evidence in court. Newspaper articles, for example, can be based on anonymous sources, which is not admissible under the rules of evidence. A witness can sound persuasive on a podcast or press interview but can wither under cross-examination.
I will be taking the facts from the indictment, but as every defense lawyer knows, not all of the facts alleged in an indictment will hold up in court. Also, more facts may come out.
I’ll admit that I’m fascinated by Michael Cohen, who will be a witness in the trial: His beginnings as an admirer of outlaws, his years as a cheater and Trump’s strongarm, to his transition to a darling of what I’ve been calling the left-leaning-social media-cable-news-shows industry. I even read his book:
On October 26, 2016, Cohen created a shell company, opened a bank account in Manhattan in the name of the shell company, and transferred into the account $131,000 from his home equity line of credit. After confirming that Trump would pay him back he transferred the money to Stormy Daniels.
January 2017: Cohen met with Weisselberg to discuss how he would be reimbursed. They agreed to a total payment of $420,000 (doubling the $130,000 and giving him $50,000 for another expense, and a $60,000 year-end bonus. This hid the bonus and made it look like reimbursement for tax purposes.
Meanwhile, in early January 2017, Cohen was thrown onto the national stage when the Steele Dossier was made public, alleging that the Russian government had been “cultivating, supporting and assisting” President-elect Trump for years. Cohen was named several times as a conduit between Trumpworld and the Russians. For example: “Kremlin insider reports TRUMP lawyer COHEN’s secret meeting/s with Kremlin officials in August 2016 was/were held in Prague.”
Cohen told reporters that the entire Steele Dossier and all of the allegations were “absolutely false.”
Also in early January, Cohen described himself this way: “I am the fix-it guy. Anything that Trump needs to be done, any issues that concern Trump, I handle. . . I’m the guy who stops the leaks. I’m the guy who protects the president and the family. I’m the guy who would take a bullet for the president.”
February 2017: Trump met with Cohen to confirm the repayment arrangement.
February 2017: Cohen began emailing the Trump Org monthly invoices. Meanwhile, the Trump Org falsely recorded the payments as compensation for legal services. Trump personally paid nine of the checks from his personal bank account. (In other words, Trump left his fingerprints on the evidence.)
May 17, 2017: Special Counsel Robert Mueller was appointed to investigate the ties between the Trump campaign and Russia.
July 2, 2017: The New York Times reported that Cohen was being “sidelined” from Trumpworld under the “glare of the Russia inquiry.” (This appears to confirm that Cohen was indeed a conduit with Russia.)
July 19, 2017: The FBI, under the direction of Robert Mueller, executed a search warrant to obtain Cohen’s emails from 2016 through July of 2017.
Important: Nobody at the time, including Cohen, knew this was happening. Cohen didn’t know that the FBI was reading his emails for the past year. Keep that in mind as you move forward with the timeline.
To get the search warrant, the FBI had to present probable cause to believe that the emails would contain evidence of a crime. Presumably special counsel had evidence that Cohen was coordinating between the Russians and Trump.
September, 2017: Cohen lamented that he was being “sidelined” by the Trump family. “The part that’s most disappointing is that I haven’t spoken to the president in several weeks. I haven’t spoken to Melania or any of the kids.”
Cohen also said this, “At times I wish I were there in D.C. more, sitting with him in the Oval Office, like we used to at Trump Tower, to protect him. I feel guilty that he’s in there right now almost alone, especially now that Keith has resigned.“
In the same interview, Cohen mentioned “loyalty” several times and said his loyalty is so unceasing that it “tortured” him “to even walk by Trump Tower, and it infuriated him that there were still people in the White House who were more interested in building their own brands than in being loyal to the president.”
(Because he said all of this in a media interview, we can assume he wanted Trump to hear and bring him back to the levers of power.)
Later, in 2020, Cohen published Disloyal, describing his relationship with Trump. What he wrote helps us understand Cohen’s pain at being sidelined.
In his book, he described what he did for Trump:
“I stiffed contractors on Trump’s behalf, ripped off his business partners, lied to his wife Melania to hide his sexual infidelities, and bullied and screamed at anyone who threatened Trump’s path to power.”
Why did he do it?
“The answer, I was coming to see, included something deeper than the obvious lures of money and power, though those were crucial factors. It was physical, emotional, not quite spiritual, but a deep longing and need that Trump filled for me. Around Trump I felt excited, alive, like he possessed the urgent and only truth, the chance for my salvation and success in life.”
Cohen said he was susceptible to the allure of Trump-style power. Since childhood, he’d been fascinated by mobsters and attracted to their power and methods, which he found “glamourous.” He wanted to be a gangster lawyer:
“I wanted to be like Bugsy Siegel and Meyer Lansky and Roy Cohn—or Downtown Burt Kaplan hanging out by the pool at the El Caribe. I liked how wise guys moved, talked, and thought. I liked how they resolved issues and commanded a room. I would practice law, I determined as a kid, but I’d practice it like a gangster.”
Cohen explained how Trump brings people into his web of lies and deceit. First Trump tells a lie. He knows it’s a lie. You know it’s a lie. If you go along, he has you. Then he tells another.
He subtly signals to people what lie they are supposed to tell, and bestows his favor when they comply. Eventually, people start believing their own lies because Trumpworld reinforces them.
Cohen wrote that Trump has an “unerring eye” for the kind of person he can reel in:
“Explaining exactly how Trump came to dominate my thoughts, night and day, for years on end, isn’t a simple one-dimensional undertaking. The first vital ingredient was my desire to please him, which was matched by my fear of displeasing the Boss. Over and over again, these two co-equal motivations urged me further and further into the embrace of his way of seeing the world and life. But another element of Trump’s gaslighting genius involved his ability to attract a certain type of person into his inner world . . . The Boss had an unerring eye for sycophants: yes men, loyal soldiers, call them what you will.”
It was a Faustian bargain: Grovel at Trump’s feet, and be rewarded with power, and invited into a world of wealth and glamour.
What Cohen didn’t understand was that part of the bargain meant going to prison for Trump. It meant never turning on the Boss no matter what. On the other hand, Weisselberg, who took the fall for Trump in the Trump Org criminal fraud prosecution, understood this.
October 2017: Cohen testified in a closed-door interview with the Senate Intelligence Committee. (Later, he was indicted for lying to Congress during this hearing.)
January 10, 2018: Michael Cohen sued Buzzfeed for publishing the Steele Dossier claiming it was filled with lies about him.
January 12, 2018: The Wall Street Journal broke the story about the hush money payoff to Stormy Daniels. This was when the world found out about Stormy Daniels and the lurid details of her sexual encounter with Trump.
A watchdog group alleged that the payment to Daniels amounted to an in-kind donation to Trump’s presidential campaign that should have been publicly disclosed in its official reports. The group filed a complaint with the FCC and the DOJ.
Recall: John Edwards was charged with 6 counts of campaign finance violation in a similar scenario: He paid a woman he was having an affair with to keep quiet during the election. The jury acquitted him of one of the charges and deadlocked on the other 5. Technically the prosecution could have asked for a retrial for the 5 deadlocked charges, but, because the jury had leaned toward acquitting on all the charges, the DOJ didn’t retry the case. The DOJ was excoriated for bringing (and losing) the case.
February 8, 2018: Mueller’s team turned over Cohen’s emails to the federal prosecutors in the Southern District of New York (the SDNY). The SDNY then obtained a search warrant for access to Cohen’s email account from November 13, 2017, until February 2018. Presumably the evidence of crimes in the first batch of emails allowed for a search warrant for another batch.
Remember, nobody (including Cohen) knew that the FBI is reading all of his emails.
We later learned from the search warrant that at this point, the SDNY investigation of Cohen largely focused on fraudulent practices with his taxi businesses and false statements to banks.
February 13, 2018, Michael Cohen told the press that he paid Stormy Daniels the $130,000 out of his own pocket as a favor to Trump and Trump had nothing to do with it. Specifically, he said this:
“Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly. The payment to Ms. Clifford was lawful, and was not a campaign contribution or a campaign expenditure by anyone.”
Meanwhile, the prosecutors have his emails and are watching him lie — but Cohen doesn’t know that. (See how interesting this is?)
April 9, 2018: The FBI searched Cohen’s office.
The FBI searched Cohen’s home, office, and hotel room. They seized documents related to Cohen’s ownership of New York City taxi medallions and docs related to the $130,000 payment to Stormy Daniels.
This is when the world — and Michael Cohen — learned that he was under federal investigation. (You can assume this moment was a shock for him.)
April 9, 2018, the day of the search, Trump personally spoke to Cohen and told him to “stay strong.”
April – July 2018: Suddenly Cohen is all over the news. Reporters are digging up information about his past, including how he assisted Trump in cultivating ties to Russia and that his shell company that paid the hush money to Daniels received more than $1 million from a company linked to Russian oligarchs. (Wait, what?)
Meanwhile, Trump’s lawyer (“Lawyer C”) pressured Cohen not to cooperate with law enforcement (a guilty plea counts as “cooperating”).
April 19, 2018: Cohen dropped his lawsuits against Buzzfeed and the company that compiled the Steele Dossier.
(My assumption: He knew he was busted and would lose the lawsuit.)
April 25, 2018: Cohen filed court papers indicating he would assert his Fifth Amendment rights in the case prosecutors were building against him.
April 26, 2018: Trump said Cohen handled only ‘a tiny, tiny fraction’ of his legal work.
(We’re at the part where Trump hardly knows Cohen. He was just the coffee boy! We also know Cohen isn’t going to take it the way Trump expects.)
July 25, 2018: CNN received the tape recording of the 2016 conversation between Trump and Cohen in which they discussed buying the rights to Karen McDougal’s story.
(It’s hard to imagine how CNN got this tape unless Cohen leaked it to show that he wasn’t acting alone: Trump was right there with him.)
Aug. 7, 2018: Cohen met secretly with Mueller’s team and lied to them about the Trump Organization project in Moscow he was helping negotiate in 2016.
Aug. 21, 2018: The SDNY brought charges against Cohen in connection with his taxi company and the campaign violations. Cohen pleaded guilty to 5 counts of tax and bank fraud, 1 count of campaign violation, and 2 counts of unlawful corporate contributions.
Specifically, Cohen pleaded guilty to
(Cohen was pulling in some serious money between 2012 and 2016.)
When Cohen pleaded guilty, the US Attorney said this:
“Michael Cohen is a lawyer who, rather than setting an example of respect for the law, instead chose to break the law, repeatedly over many years and in a variety of ways. His day of reckoning serves as a reminder that we are a nation of laws, with one set of rules that applies equally to everyone.”
In other words, the prosecution stressed that he was acting as a lawyer.
(In exchange for pleading guilty and cooperating, Cohen probably got some of the charges dropped.)
While pleading guilty, Cohen stated, under oath that he made the hush money payoffs at Trump’s direction and that after he made the payment, Trump reimbursed him. His lawyer, Lanny Davis, went on TV to say that Cohen’s statement meant Trump broke the law. He also said Trump “would be indicted and jailed if he weren’t president.”
Question: Does the fact that Cohen made the payments at Trump’s direction prove that Trump also committed federal election finance crimes?
Answer: Not necessarily. It implicates Trump by showing that he was involved in the scheme but doesn’t prove he committed a federal election campaign finance crime.
To begin with, the mens rea (level of intent) for violations of the Federal Election Campaign Act (FECA) is the highest possible: “Knowing” or “willfully.” This means that, while ignorance of the law is usually not a defense in criminal matters, under 52 U.S.C. 30109(d)(1)(A), ignorance of the law is an excuse because, to be convicted, the person has to know what the law requires and has to violate the law despite knowing this.
So it wouldn’t be enough to show that Trump intended to engage in catch-and-kill and that doing so violated campaign finance laws. The prosecution would have to prove that Trump also knew he was violating election laws.
What complicates this scenario is that (as the prosecution stressed) Cohen and Trump had a lawyer-client relationship. The lawyer is expected to know the law.
The first question is: “Did Cohen [the lawyer] warn Trump that what they were about to do was illegal?” It seems to me that if a client says, “Let’s do this,” and the lawyer says, “Okay, I’ll do it,” and the lawyer doesn’t check to see whether it is a crime, the lawyer (who is expected to know the law, or at least go look it up) has more criminal liability than the client, particularly if the law is complex (like the federal election campaign finance laws) with provisions that are not common knowledge. In other words, two people can be involved in the same act but have different levels of criminal liability.
The statement, “Cohen went to prison for crimes he committed at Trump’s direction” is also misleading at best, and possibly false. Only 2 of the 8 crimes Cohen admitted to had anything to do with Trump. The most serious of the crimes was bank fraud, which carries a 20 year maximum sentence. The other charges carried a 5-year maximum. The penalty for campaign finance violations is usually a fine. In fact, AMI, which also admitted guilt, was fined.
Thus, because Cohen was sentenced to a total of 3 years for the 8 counts, including bank fraud, Lanny Davis’s statement that Trump “would be indicted and jailed” if he weren’t president was probably not true. But it was what Lanny Davis (and Cohen) wanted people to think.
Question: Why wasn’t Trump charged by the SDNY for campaign finance violations?
Answer: Nobody knows except the prosecutors who made the decision. They saw all the evidence, including reams of emails seized from Cohen. Given what they knew about Cohen at the time, it’s possible they concluded that Cohen wasn’t a reliable witness, and convicting Trump of violating FECA would (probably) require relying on Cohen as a witness to establish Trump’s mens rea.
Trump posted on Twitter that he felt bad for Manafort, but not for Cohen because Cohn “broke” and lied to prosecutors to get a deal.
Sept. 12, 2018: Cohen met with Mueller’s team a second time and admitted that previously he misled them about the Moscow project.
Oct. 11, 2018: Cohen changed his voter registration and became a Democrat.
Nov. 2, 2018: Cohen told the press that Trump once said “Black people are too stupid to vote for me.”
(Cohen seems to be getting back at Trump for cutting him loose and expecting him to take the fall.)
Nov. 29, 2018: New charges were filed against Cohen. This time the charges were filed by the Mueller team. Cohen pleaded guilty in federal court to lying to Congress about his knowledge of Trump’s Moscow project. The indictment is here.
The fact that another indictment against Cohen was in the works for lying supports the theory that the feds concluded that Cohen would not be a credible witness against Trump. It’s hard to rely on Cohen as a witness while bringing charges against him for lying.
February 27, 2019: Michael Cohen testified before Congress and this time blasted Trump.
May 6, 2019: Cohen reported to prison.
July 1, 2021: The Trump organization and CFO Weisselberg were criminally indicted for fraud.
We all know what happened with this: Weisselberg took the fall for Trump and kids. (It’s hard to get to the Don if the Consigliori takes the blame.)
November 22, 2021: Cohen was released from prison early because of the pandemic. He declared himself eager to “cooperate with law enforcement” to “ensure that others are held responsible for their dirty deeds and that no one is ever believed to be above the law.”
[Those others would be Trump.]
October 24 – 25, 2023: In the civil fraud case against Trump, Cohen took the stand to testify against Trump. He claimed that Trump directed him and Weisselberg to change the valuation of assets on financial documents in order to reach whatever arbitrary net worth Trump wanted for himself. He also said he was not guilty of tax evasion even though he pleaded guilty to tax evasion. Trump’s lawyer then accused Cohen of committing perjury when he pleaded guilty.
During this testimony, Cohen seemed to be saying that he lied under oath in his 2019 Congressional testimony. After lunch, he changed course and said he told the truth in 2019 when he testified before Congress. Evidently at issue was that Cohen admitted that Trump didn’t specifically say, “Michael, go inflate the numbers.” Instead, Cohen said Trump “speaks like a mob boss” and “tells you what he wants without specifically telling you.”
In other words, Cohen changed “he told me to do it” to “he didn’t exactly tell me to but I got the message.”
Trump knows how to shield himself and let others take the fall. Meanwhile, Cohen — who explained that he loved being close to Trump — was eager to anticipate Trump’s desires.
March 20, 2023. Bob Costello, an attorney who says he previously advised Cohen, testified before the Manhattan grand jury investigating Trump’s role in the hush money incident. He appeared as an exculpatory witness for Trump. He later told reporters, that his former client, Cohen, has a “lie, cheat, steal” mentality. “If they want to go after Donald Trump and they have solid evidence, then so be it. Michael Cohen is not solid evidence.”
March 30, 2023: The Manhattan grand jury handed down a 34-count indictment against Trump for his role in the hush money payoffs.
March 20, 2024: Cohen was in trouble again for (possibly) lying when a federal judge suggested that he committed perjury under oath:
Judge Jesse M. Furman in Manhattan questioned Cohen’s truthfulness in a written order denying his request for early release from the court supervision that followed his three-year prison sentence for crimes including tax evasion, lying to banks and Congress and violating campaign finance laws.
“At a minimum, Cohen’s ongoing and escalating efforts to walk away from his prior acceptance of responsibility for his crimes are manifest evidence of the ongoing need for specific deterrence,” Furman wrote as he explained why he left in place the court supervision that is scheduled to end later this year.
Because the hush money was paid to try to swing the election by preventing Stormy Daniels and Karen McDougal from telling the voters their stories, the case will be presented as another instance of election interference.
New York Penal Code 175.10 makes it a crime to falsify internal business documents. (The federal government has no such law unless documents are falsified in connection with tax fraud, health care fraud, or as part of a conspiracy to obstruct justice. So if you’re wondering why the SDNY didn’t charge Trump with falsifying internal documents, that’s why.)
Ordinarily in New York, falsifying internal documents is a misdemeanor, but if the documents are falsified with the intent of hiding criminal activity, the crime becomes a Class E Felony (the lowest level felony.) The indictment accuses Trump of felony 34 counts of violating Penal Code 175.10 when he falsified 34 internal documents to conceal the nature of the payments to Michael Cohen.
To get a felony conviction under Penal Code section 175.05, the prosecution must prove both of these elements beyond a reasonable doubt:
(1) isn’t that hard, because Trump wrote so many of those checks.
(2) is what turns the crime into a felony.
Issues
The statute of limitations. Some exceptions probably apply. For example, under New York law, the statute of limitations stops running when a defendant is “continuously” outside of the state.
The crime in element (2). Manhattan DA Alvin Bragg didn’t name the crime in the indictment because, as he said in a press conference, the law doesn’t require that he do so. (I assume he wanted to hide his cards as along as possible and keep his options open).
Later he offered these possibilities:
NY Election Law 17-152: Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.
NY Tax Law 1801(a)(3): Knowingly supplying or submitting materially false or fraudulent information in connection with any return, audit, investigation, or proceeding or fails to supply information within the time required by or under the provisions of this chapter or any regulation promulgated under this chapter.
NY Tax Law 1802: Any tax fraud act.
FECA (the Federal Election Campaign Act): This one seems problematic to me. It requires the heightened mens rea, “knowingly” or “willfully.” Moreover, the federal statute of limitations has passed. Finally, it isn’t clear that a federal law can be used in element (2).
A verdict requires a unanimous jury.
My guess is they can certainly get him on misdemeanors, and there was probably some tax fraud in there as well to bump the charges to a Class E Felony.
Trump’s Defense
Trump’s lawyers filed a motion of their intent to present something like an ‘advice of counsel’ defense, but it isn’t really an “advice of counsel” defense because Trump never asked a lawyer’s advice. His defense seems to be that because lawyers were involved, he was justified in assuming the actions were legal.
(This might work with the heightened mens rea in the federal election statute but I don’t believe he can persuade a jury that he thought falsifying internal records was okay because lawyers were involved.)
Now I’ll change the subject and tell you about a conversation I had with a long-time reader.
The conversation started when she begged (asked 3 times) for me to explain what’s happening with Judge Cannon (the judge in the Florida stolen documents case). She said, “You have been keeping me sane for years. I need you to inject some sanity into this.”
I gave the answer I have been giving about Judge Cannon: “Trump has lots of trials and court cases. In the Florida case, he got lucky and drew a judge who is sympathetic to him.”
She pushed for more explanation. I told her that the most obvious explanation is that Judge Cannon believes everything Trump says and doesn’t believe he should be prosecuted for possessing documents dating from his presidency. I said, “Not all judges are good. Some judges are really bad. Sometimes good judges make mistakes or exhibit evident bias.
Sometimes one party gets a judge who is both really bad and biased. The prosecution will have to figure out what (if anything) they can do about it.”
She then said, “But aren’t you afraid Trump will come back to power?”
I said of course, but what Judge Cannon does in Florida has nothing to do with whether Trump comes back to power.
She then told me it matters, and that these cases must be decided before the election because if not, people on the fence might vote for Trump and then he will win.
(This is what I called the “ticking clock” plot device designed to keep her in suspense and glued to the screen.)
I said, “If people on the fence are not swayed by a jury finding that Trump committed sexual assault or a court finding that Trump committed tax and bank fraud, or a jury finding that the Trump Org is a criminal enterprise, or that Trump is proud of having overturned Roe v. Wade, or his part in the January 6 attack (he has promised to “free” the “hostages”), why on earth would someone be swayed by his handling of documents from his presidency?
She said, “That makes sense.”
She then revealed that she most admires the lawyers I have repeatedly called peddlers of left-wing conspiracy thinking. I fear she will go back to listening to these pundits because the strong emotions they peddle — fear, rage, exhilaration when our team might win — is addicting and she will need someone to help her stay “sane.”
I feel badly for her and people like her. Meanwhile, many of the lawyers keeping her terrified are making bank and enjoying their TV and Internet fame. They are on the ultimate ego trip:
Anything they say makes headlines. As my contracts professor used to say about judges, “Anyone whose ass is kissed that often may start to think it’s holy.”
On a hunch, I googled “MSNBC” and Michael Cohen” and found multiple instances of Cohen offering his opinions and making predictions. He has even been invited to offer his opinions about the trial for the scheme he helped orchestrate. A few examples:
