Not So Fast: Michael Cohen’s Plea Agreement Did Not Necessarily Implicate The President

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Elad Hakim Attorney
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On Tuesday, Michael Cohen recently entered a guilty plea and admitted to violating campaign finance laws by arranging hush money payments under the direction of an “unnamed candidate.”

While Mr. Cohen did not directly name President Trump, many people automatically assumed that he was referring to then-candidate Trump and that his admission possibly implicated the president. While many in the news media are celebrating this news, they might be celebrating prematurely and without good reason.

Michael Cohen’s admission must be taken in the proper context. First, his admission was part of a plea deal. What this means is that the prosecutor offered Mr. Cohen a “deal” of some sort for his testimony.

Oftentimes, plea deals include a lesser charge or a reduced sentence. And just because a defendant is offered a plea deal does not necessarily mean that his testimony is truthful, honest, and/or corroborated. Moreover, a plea deal is not an adjudication of guilt and does not create legal precedent. In other words, Mr. Cohen’s plea agreement cannot be used or presented to a court as legal authority.

The terms of the plea deal are also a bit unusual. According to former federal prosecutor John Lauro, it is shocking that the plea deal did not include a cooperation agreement. Lauro explained the possible reasons that there might not be a cooperation agreement.

“It can only mean one of two things,” he said. “Either he didn’t have something to give the prosecutor, or they weren’t convinced that he was completely honest with them.”

Mr. Lauro raises a fair point, given Mr. Cohen’s prior inconsistent statements. For example, in February, Mr. Cohen told the New York Times that “[n]either 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.” This statement directly contradicts Mr. Cohen’s most recent statement (as part of his plea agreement).

Putting Mr. Cohen’s potential credibility problem aside, the apparent payments (made by Mr. Cohen) may not have violated campaign finance law. According to Mark Levin, “A campaign expenditure must be solely for a campaign activity. It must come from a campaign activity, not an activity that occurred before a campaign. A candidate who spends his own money or even corporate money for an event that occurred not as a result of the campaign is not making a campaign expenditure.”

Mr. Levin provides some excellent examples to illustrate this important point. Per Mr. Levin, it is not a campaign expenditure if a candidate tells his lawyer to obtain a non-disclosure agreement and offers to pay the funds out of the candidate’s own pocket so that (Mrs. X) doesn’t attack the candidate for something that happened before the campaign.

Another example cited by Mr. Levin involves a person running for Senate. During the campaign, someone accuses the candidate of something and threatens to ruin his campaign. If the candidate tells his lawyer to prepare/obtain a non-disclosure agreement and agrees to pay him/her out of his own pocket or out of corporate funds to keep him quiet, that does not constitute a campaign expenditure. If, on the other hand, the “hush money” was paid from campaign funds that were being raised, that would be illegal.

According to Cohen, “he had paid two women, apparently porn actress Stormy Daniels and Playboy model Karen McDougal, ‘at the direction’ of an unidentified candidate in 2016, and that a $150,000 payment in August 2016 was for the ‘principal purpose of influencing’ the 2016 presidential election.”

Assuming, for the sake of argument, that Cohen’s statement is true, it might not make any difference. According to Levin, just because conduct can be construed as trying to influence a campaign does not necessarily mean that it violates campaign finance laws.

For example, suppose that a candidate who normally wears designer suits purchases less expensive clothing with his own money, or with corporate funds. He does so to better “fit in,” and/or relate to, his constituents (to get their votes). Clearly, this could be construed as conduct that is done for the purposes of influencing an election. However, this does not violate campaign finance laws.

Michael Cohen’s recent statement(s) in accordance with his plea agreement should be viewed with skepticism. In addition, Cohen’s lawyer, Lanny Davis, does not appear to be too fond of the president and previously called for Trump’s removal from office.

As Breitbart reports, “Throughout the 2016 presidential campaign and its aftermath, Davis supported Hillary Clinton. He published a book earlier this year blaming former FBI director James Comey for costing Clinton the presidency. In it, he called for Trump to be removed from office under the 25th Amendment, on the grounds of incapacity.”

While some media outlets will continue to salivate at the thought of Trump’s possible downfall, their celebration might come to an abrupt halt if it turns out that no campaign finance laws were broken. President Trump has a very capable legal team that is extremely well-prepared. If need be, they will defend him from a seemingly two-tiered system of justice.

Mr. Hakim is a writer and a practicing attorney.  His articles have been published in The Federalist, The Western Journal, American Thinker, World Net Daily, Sun-Sentinel and other online publications.  

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.