Michael Cohen is a crook and deserves to go to prison.
But the plea deal that will send him there is an oddity, and may reveal a prosecutorial motivation that has nothing to do with Michael Cohen.
Yesterday, he pled guilty to: tax evasion, for hiding some $4.1 million in income; bank fraud, for failing to disclose on a loan application that he had $14 million in debt; illegal campaign contribution, for paying off two women to “influence the outcome”of a federal election; and filing a false business document, for recouping the payoffs to the women by billing an employer for “legal services” which he had not performed.
For that, he is reportedly getting three to five years in federal prison.
That’s the first interesting part.
Any one of those elements would typically net more than five years in prison. Bank fraud alone, averages a five-year term. Tax evasion sentences average 15 months per count, but those average counts involve dramatically less than $4.1 million in concealed income.
By comparison, Paul Manafort also became a convicted felon yesterday, for tax evasion of a similar amount, and faces a potential maximum of 80 years in jail.
Yet here’s Michael Cohen, pleading in open court to a broader range of more serious crimes, and he got three to five.
Here’s another interesting thing.
For the election law charges to apply, Cohen would have had to have had the intent to influence an election when he paid off the women. The two of them, engaging in what would otherwise be called blackmail or extortion, demanded money for their silence. Each claimed to have had a sexual relationship with Donald Trump, Cohen’s legal client.
Cohen paid them money. That’s not necessarily illegal.
If Cohen said he paid the money to protect Trump’s reputation, that’s not illegal. If Cohen said he paid the money to spare the feelings of Trump’s family, that’s not illegal. If Cohen said he paid the money to protect the value of the Trump brand, that’s not illegal.
It’s only illegal if it’s to influence an election – and only then under certain circumstances.
How possibly could a prosecutor prove what Cohen’s intention was? That’s one of the heavy lifts for any prosecution – intent. In this case, the defendant, a lawyer, freely revealed intent – freely gave up the information that tacked two more federal felonies onto his resume.
Why would he do that?
What would have induced him to expose himself to that additional criminal liability?
Maybe that unusually short prison sentence.
By claiming the payoffs were for political benefit, the payoffs become in-kind political contributions. As such, they are subject to contributions caps – which Michael Cohen exceeded, as an individual and as a corporation.
He subsequently recouped the money by filing the false invoice with a Trump company.
But all eyes, and all newscasts, are on the election law violations, which ominously claim that Cohen’s actions were directed by and in concert with a candidate everyone knows was Donald Trump.
That’s had people hopping up and down. And by “people,” I mean Democrats in office and in the press who are hoping against hope to turn this into a political weapon against Donald Trump and the Republicans during the looming midterm election.
So let’s talk about it.
Did we learn anything new about this situation and was the situation criminal?
The answers are no and no.
We already knew Trump authorized the payoffs, we’ve heard audio of the conversation in which he did so, and his current lawyer – Rudy Giuliani – has said he authorized the payoffs and compensated Cohen for them.
We knew all of that.
It’s important to note what Michael Cohen didn’t plead guilty to – conspiracy. Oddly, that is Trump’s vindication in this matter.
Conspiracy is when two or more people make a plan to do something criminal. There must be two or more conspirators, and there must be criminality.
We know that Michael Cohen is not a conspirator. And so the person with whom he consulted is not a conspirator either. It also means that the plan they made – to pay off seeming blackmail – was not criminal.
It is not against the law to pay off these women, or to direct your lawyer to pay them off.
Where the criminality comes into play is when the lawyer then decides to pay them off to achieve a political end AND to pay them off in a fashion that violates the donations cap.
If Michael Cohen had decided he wanted to influence the election, but instead of paying the extortion in lump sums, had solicited various Trump friends to give the women an amount under the federal political-donation cap which rose in the aggregate to what they demanded, no law would have been broken.
What Trump did is not illegal.
What Cohen did is.
Which is why he is going to prison.
But he is going to prison for an unusually short time, and he made an unnecessary criminal admission that brought the president under political embarrassment, and the whole thing came down just before Labor Day before the midterm elections.
And that smells political.
It smells like a gaming of the prosecution by individuals within the Department of Justice in order to land a political blow against a sitting president of the United States.
That ought to give you pause.
That short prison term bought something from Michael Cohen – it bought Trump’s political foes a weapon, timed perfectly to advance the interests of the Democratic Party.
And that’s the biggest take away from the prosecution of Michael Cohen.