Trump's worst day: everything you need to know about the Manafort and Cohen trials

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  Tuesday’s developments in the Manafort and Cohen legal battles threw a Sharknado-level of craziness into the political news cycle, and the madness is far from over. I’ve been working overtime in analyzing the legality and politics of the guilty verdicts for Paul Manafort, the guilty plea from Michael Cohen, and the consequences of their felonies for the President of the United States, Donald Trump. In this analysis, I will divide the subject in two, expanding on the background and ramifications associated with each felon.

 

Paul Manafort

 

Who is Paul Manafort?

Manafort was Trump’s former campaign chairman for several months in 2016.

What is he guilty of?

Special Counsel Robert Mueller’s legal team acquired guilty verdicts against Manafort on eight counts, with another ten counts ending up in a deadlock due to a lone juror. The convictions were on five counts of tax fraud, two counts of bank fraud, and one count of hiding foreign bank accounts. Put simply, Manafort is a huge tax cheat (with bank fraud), and he is hiding somewhere between 30 and 75 million dollars in some 30+ accounts.

 

Why is this significant?

Manafort was Trump’s campaign chairman, so felonies like this are big news for the president. His conviction has two immediate implications: first, it demonstrates that, contrary to the pontificating of conservative pundits, Robert Mueller’s investigation is being conducted professionally and effectively.

This victory provides a huge wind in the sails of the Special Counsel’s credibility by showing that he is prepared and only acts when he is confident of the outcome. I predict that Manafort’s conviction should begin to move the public’s favorability of the investigation in a positive direction.

 

How does this impact the president?

Manafort is yet another in a long list of Trump associates who’ve been found guilty of a major crime. But the president’s team says the “Manafort case has nothing to do with the President”- and they’re actually correct. Yes, his was a significant crime, and while Manafort continued his illegal activity around the time he was working with Trump, his bank and tax fraud convictions are totally irrelevant to any relationship he had with the then-candidate.

Unfortunately, the Manafort convictions continue to demonstrate President Trump’s boast of hiring “only the best and most serious people” backfired dramatically. Trump’s swamp project, in other words, was an expansion rather than an elimination.

 

What is Trump’s position?

Trump stands with his former campaign managers, calling Manafort, a “brave man” that he feels “badly for” and that he has such “respect” for. These commendations came after Manafort’s conviction. Trump also falsely claimed the crimes being investigated were twelve years-old and complimented Manafort on not snitching.

Trump also reiterated that the Mueller probe was a “witch hunt”, citing the ten counts that the jury couldn’t convict on. Unfortunately for Trump, the fact that a lone juror was the only thing from Mueller getting a clean sweep changes nothing. It was a huge win for Mueller, and everyone knows it. Manafort’s convictions mean quite the opposite of what President Trump now claims.

As a side note, one of the accusations the jury could not reach a unanimous decision about was the charge of attempted bank fraud, which may have resulted from Judge T.S. Ellis making an improper comment during trial. Ellis told the prosecution, “you might want to spend time on a loan that was granted,” before he was reminded by the prosecution that attempted bank fraud was one of the charges and would be considered just as serious as if the loan had been granted. Again, it’s probably not significant, but it’s also undeniable that this improper comment from the judge could have been what eventually caused the jury to end up deadlocked on one of the counts of bank fraud.

 

Why is this Trump’s position?

Trump’s reasons for publicly supporting Manafort, whom he also claims he barely knew, are twofold. First, he is sending an overt message to Manafort himself that he should not flip on the president and if he is loyal, a pardon will be forthcoming. Second, Trump is working public opinion to sway his base (and others) against the backlash that could grow if he eventually pardons Manafort.  

 

What does this mean for Manafort?

Some experts believe the sentence for Manafort will amount to around ten years. But given that the sentence could also exceed eighty years or more, and he has another upcoming trial in addition to his current conviction, Paul Manafort will likely spend the rest of his life in jail. The judge in his case can also use the deadlocked charges as part of Manafort’s sentencing guidelines and add to the punishment, despite them ending in mistrial. Therefore, Mueller’s team will most likely not bother retrying Manafort on the deadlocked issues.

 

What’s next for Manafort?

In about another month, Manafort goes on trial again, this time in Washington D.C. The trial includes seven additional charges ranging from failing to register as a lobbyist on behalf of a foreign government (Ukraine, but really a proxy of Russia) and tampering with witnesses. This is a much bigger story with possible ramifications to Trump and Russian collusion. Keep your eyes on this one.

 

What are Manafort’s options?

To be blunt, Manafort will almost assuredly lose his case in Washington D.C. Why do I say this? First, he won’t have such a favorable judge; and second, Mueller has stronger and more abundant pieces of evidence than in the previous case.

That leaves Manafort with three options. First, he can put up a defense. But as I mentioned, it would almost certainly be a waste of money. Second, he can take President Trump’s hints and, expecting a pardon, use what’s called a “soldier’s plea.” This is when a defendant pleads guilty to all charges, hence being seen as a “good soldier.”

The advantage of doing this is that Manafort saves money for what will be an uphill battle to defend himself, and more importantly, Mueller’s team will lose the ability to make headlines with specific ways Manafort was tied to, and lobbied for, Russia via the leadership of Ukraine. But if the trial goes forward, Trump’s claims of no collusion and no links to Russia may be tested in the public court, which is potentially devastating for the president.

The new trial may also demonstrate that Manafort’s finances were crumbling and that he could have been easily influenced by a foreign power. Plus, don’t forget that Manafort was part of the infamous Trump Tower meeting with Trump’s family and people connected to the Kremlin, so more information possibly implicating them may come to light in the next trial.

The final option for Manafort is to begin cooperating with special counsel Robert Mueller’s team. If he does so, Manafort avoids the next trial and possibly gets a reduced sentence for providing information regarding Russian interference in the election. But Manafort will most likely only take this step if he is unsure of getting a presidential pardon or if he understands that the pardon will make no difference in the end.

 

Does a pardon get Manafort off the hook and make all this go away for Trump?

No. Mueller is crafty. If Trump pardons Manafort of all federal charges, Manafort can still be tried under a state’s laws (the president can only pardon federal offenses). He is, in fact, already under investigation from the New York state attorney general and the Manhattan district attorney.

Vox’s Dylan Matthews is on-point when he wrote that Mueller “declined to indict Manafort for a number of offenses that are also crimes in New York.” So it appears Mueller and the legal system of New York will have the last word on what freedom, if any, Paul Manafort has left in his life, regardless of any pardon by the president.

Personally, I don’t believe that will stop Trump from pardoning Manafort. Indeed, Manafort may be pardoned even before the next trial if Trump is worried about the public’s access to evidence of Manafort’s dealings.

It is also worth noting that a pardon does not prevent Mueller from compelling Manafort to tell everything he knows. It’s an oddity of the law, but it’s true. If pardoned, Manafort must still tell the special counsel any dirt he has on Trump. But here’s the catch: If Manafort remains protective of Trump after receiving a pardon, even though he is still compelled to talk to Mueller, he can just decide to lie to Mueller’s team.

In this instance, Manafort would be betting his freedom on a second Trump pardon, this time for lying to Mueller’s team after the first pardon. While risky, it’s not unprecedented for Trump to pardon someone for lying to a prosecutor. Remember, he pardoned Joe Arpaio for disregarding court orders. Again, even if all the chips go his way and Manafort gets not one, but two pardons, he will still face state charges in New York, so this strategy is high-risk low-reward.

 

What are the immediate political implications?

Trump’s administration appears, now more than ever, to be full of sketchy characters. And Trump’s decision making, as well as the public’s confidence, in him will take a hit with these convictions. After all, when the president defends a guy who committed millions of dollars in tax and bank fraud and raises the possibility of pardoning that person, all the while claiming that what Manafort was convicted of is something that “every consultant, every lobbyist in Washington probably does,” it doesn’t leave us feeling any better about his presidency.

And if Trump goes through with pardoning Manafort, I suspect this will win him no additional support in the general public, nor in Congress. Indeed, the backlash to a pardon only risks harming both Trump in the future and his party in the midterms.

 

Michael Cohen

 

Who is Michael Cohen?  

Trump’s personal lawyer and “fixer” of sordid affairs.

 

What is he guilty of?  

Cohen pled guilty to eight felony charges in the Southern District of New York.  These included five counts of tax evasion, one count of falsifying submissions to a bank, and two counts involving unlawful campaign contributions. Please pay attention to the last category. It sounds benign, but as I’ll detail below, it’s a powder keg.

 

Why is this significant?

This news is a bombshell. When pleading guilty, under the penalty of perjury, in a federal court, Cohen read a statement which in part said that he committed those crimes “in coordination with and at the direction of a candidate for federal office …. for the principle purpose of influencing the election.” Cohen said this not once, but twice, both charges related to payments he made on behalf of Donald Trump to different women (Karen McDougal and Stormy Daniels) with whom Trump had affairs in 2006 and 2007 while married to his third wife, Melania Trump.

I repeat.  Donald Trump, the current president of our country, was named in federal court as an unindicted co-conspirator in a crime to influence the presidential election. It takes your breath away.

 

How does this impact the president?

Most legal scholars think that a sitting president cannot be indicted while serving his term. Indeed, Cohen’s own attorney, Lanny Davis, thinks Trump would already be indicted if he were not the president. But even if Trump can’t be indicted, his family sure can. Trump most certainly can also be impeached.

Recall that Bill Clinton was impeached by the House of Representatives, but acquitted after the Senate did not convict on charges of perjury and obstruction of justice. Our residing president is currently being accused of conspiring to illegally influence his own presidential victory. That is a far more serious accusation.

In the future, is there a chance Trump can be impeached for the exact same crimes as Clinton?  Perhaps on the obstruction of justice, but it’s doubtful on perjury. Why? Because Trump will probably never talk to the special counsel under oath. Even Rudy Giuliani is afraid Trump can’t go ten minutes without telling a lie. The former New York City mayor complained that talking to Mueller would be a perjury trap (which is disputed), making it clear that he understands Trump to be a compulsive and pathological liar.

If Robert Mueller ever did get Trump under oath, in my view, the impeachment proceedings for perjury could probably be scheduled in advance of the first question.

 

What is Trump’s position?

It depends on what day you ask him. Trump has lied at every juncture of this event. He first claimed he did not have an affair. Then he said did not know about payments. Okay, he knew about the payments, but not until after they were made, both for both Daniels and McDougal.  And while she won’t be indicted, Sarah Sanders is the person who is, other than the president himself, in charge of relaying his messages. Sanders has unquestionably lied about these same subjects on behalf of the president, even emptily protesting this week that anyone accusing Trump of (provable) lies is ridiculous.

Trump and his surrogates have made several defenses to the accusation Michael Cohen made in federal court. I will address them one at a time.

First, Trump said on Fox that he only knew about the hush payments after they were made. But this is contradicted by Cohen’s audio tapes, recorded before the election. And plus, it’s irrelevant to the crimes. This does him no good but instead may harm Trump by demonstrating a coordinated effort to break campaign finance rules.  

Second, Trump believes the charge (committing crimes to influence the election) Michael Cohen pled guilty to and will do time in prison for, is not a crime. That is plain wrong.

Third, using the defense also championed by attorney-turned-Trump supporter Alan Dershowitz, Trump claims that since the money came from him (actually his organization), and not the campaign, then it was not a crime. This argument was also parroted by lots of people on the right from Sean Hannity to a former Republican FEC chair, Bradley Smith in the Washington Post. But Trump, Dershowitz, Hannity, Smith, etc. are either ignorant of the law (likely for Trump and Hannity), or so biased as to purposely ignore the important parts of it.

While it’s true that Trump can contribute any amount of money he wants to his own campaign, even that exception has several important stipulations. The payment cannot be hidden by some other entity, which is what happened (Cohen and the National Enquirer paying the women), and Trump must declare the payment according to FEC rules. Plus, Trump cannot direct another person to break the law, which is precisely what Michael Cohen testified happened.

Indeed, this defense (that Trump reimbursed Cohen) means Trump broke at least two laws: engaging in conspiracy by paying Cohen after the fact and circumventing reporting requirements.

Trump’s excuse also fails common sense. You can’t give out substantial money to a campaign to silence people and never report it. The FEC has disclosure rules and reporting requirements for a reason. Donald Trump even paid extra money of almost $300,000 to Cohen, which was well above and beyond the $130,000 Cohen paid to Stormy Daniels for her silence.

Combine this with longtime Trump friend and owner of the National Enquirer, David Pecker, who has cooperated with authorities for an immunity deal, testifying that Trump knew of his payment to silence Karen McDougal. So yes, of course Trump’s actions were illegal.

The FEC has disclosure laws for the specific purpose of avoiding secret donations in order to influence an election. Regardless of if the money was reimbursed from Trump or his organization instead of the campaign, Trump violated the law, and it’s only a question of how many laws he broke.

Another of Trump’s excuses is that Obama did something similar during his campaign.  But that is also false. What Obama’s campaign paid a fine for (as did many candidates like McCain and even Bob Dole) was, as NBC news explained, a “small, technical paperwork error that people who were trying to get it right might make.”

Obama’s campaign, along with many other campaigns on both sides of the aisle, made relatively minor infractions during the course of the election cycle. Trump’s lawlessness consisted of egregious and willful violations attempting to hide large individual payments. Experts say the line between civil and criminal offenses lie within the intent and the severity of the campaign violation, and not an expert in the country believes Obama, McCain, or Dole’s violations are in the same ballpark as Trump’s.

Trump’s final defense is his best one, but he hasn’t thought of it yet. He actually said about his payment to Cohen for Stormy Daniels that “it was not a campaign violation,” which indicates it was a payment for the campaign, and not a personal matter. A better defense would have been to say “the payment was not for the campaign.” If Trump said the payments to both Daniels and to McDougal were personal and not for the campaign, then the payments would be legal. In other words, a defense to the Cohen allegation would be that Trump simply paid Daniels and McDougal so his family wouldn’t find out about the affairs.

Unfortunately, Trump has already admitted on Cohen’s tapes his rationale was based on the election. Plus, the women’s stories had been relatively dormant for almost ten years, so why would Trump decide to pay them now, at the very moment before the election?  Indeed, the hush payment was timed to the detriment of everyone in the country except Melania. Melania would have been upset about Trump’s affairs regardless of when she found out. For the fact that Cohen has already admitted the purpose was not personal, combined with the tapes, and the payments’ timing, this (unspoken) defense is unwinnable.  

To borrow a phrase from John Oliver, here is where “Stupid Watergate” rears its head-shaking stunner. Trump could have paid off Daniels while keeping it on the down low (relatively speaking) if only he’d had better lawyers. In a fascinating analysis from Jon Schwartz at the Intercept, had Cohen paid Stormy Daniels only one day later, then the Trump campaign would not have had to disclose the payment until after the election (FEC rules say that any contribution made after Oct 27, 2016, doesn’t need to be disclosed until Dec 8).

Even then, Trump’s team could have simply called the payments something like “legal expenses” or “purchase of legal rights” and they would have been in the clear with no one the wiser. However, regardless of the date, Trump still was required to disclose the payments in some way, and he did not. Remember, Trump can give unlimited amounts to his campaign, but he can’t hide them, and they have to come from him directly or his organization (not Cohen). It’s as simple as that.

Unfortunately for them, Trump’s family is now implicated as well.  Since the repayment to Cohen was made by the Trump organization (the trust) after the election, the people in charge of the corporation, Don Jr. and Eric, must now answer for the payments and all the trappings that came with the failure to disclose them.

And unlike Trump himself, his children would be subject to the strict campaign limit of $5400, which means Trump’s family-controlled trust can be indicted (his children) on an additional charge of exceeding campaign finance limits, a serious enough felony that Dinesh D’Souza was convicted on it, but was later, and get this, pardoned by none other than Donald Trump. You can’t make this stuff up.

 

Why are these Trump’s positions?

He’s making it up as he goes. That’s why his story has constantly changed and will likely to continue changing until it lands on something defensible. But as of now, Trump’s arguments don’t hold water.

 

What does this mean for Cohen?

Canary-style singing to anybody who will listen. And his stories, for the first time in a long time, have a hint of sincerity. Cohen is done “fixing” anything for Trump, so don’t expect him to help out the current president anytime soon.

 

What’s next for Cohen?

Prison. It is speculated that his deal with prosecutors (remember, he has not been questioned or charged by Robert Mueller’s special counsel) will put him behind bars for between three and five years. But it could have been up to 65 years. Why so long? Other than the tax evasion and falsifying loan submissions to a bank (Stupid Watergate #2, which I’ll expand on in a bit), Cohen’s crimes are eerily similar to the felonies Manafort committed. And they all have significant jail time attached, which is why Cohen is attempting to get ahead of them by pleading guilty and taking a deal.  

(OK, Stupid Watergate #2. Cohen pled guilty of falsifying his assets to a bank in order to procure a loan. What loan was that you ask? It was the loan, because Cohen didn’t have enough cash, to pay Stormy Daniels on Donald Trump’s behalf! In other words, in order to successfully commit a federal election crime with Trump for the purpose of influencing the election, Cohen had to first commit a different crime, falsifying submissions to a bank, to make it all work. That’s something, isn’t it?)

Unfortunately for Cohen, he has more explaining to do in his future. New York State’s Department of Tax and Finance just issued a subpoena to Michael Cohen related to the Trump Foundation and possible violations of several state laws. So there are more laws he may have broken, and he may know about violations by the Trump Foundation.

Plus, Cohen still waits to speak with the special counsel. Robert Mueller’s team has not chatted in detail with him, which Cohen’s own lawyer said they look forward to doing. Indeed, Lanny Davis said his client was eager to speak with Mueller to Rachel Maddow on MSNBC.

 

What are Cohen’s options? Can Trump pardon him?

Given Trump’s anger, saying that he hates “rats”, and his declaring that making deals with the prosecution should be a crime, I don’t see a pardon in the future for Michael Cohen.  Besides, Cohen’s attorney claims they don’t want one.

 

Who else is involved?

David Pecker (owner of the National Enquirer), and Allen Weisselberg (Chief Financial Officer of the Trump Organization and Treasurer of the Trump Foundation), were both granted immunity by the Southern District of New York in their investigation into illegal campaign contributions. You’ve probably watched enough Law and Order to know that prosecutors only provide immunity to get evidence against people in the criminal endeavor they are investigating who are equal to or higher on the food chain. Yes, the immediate target was Michael Cohen, but c’mon. There are only three people who are higher on the possible suspect list than Pecker and Weisselberg, and their names all end with Trump: Eric and Don Jr. at the top of the Trump Organization, and then there’s the president himself.

 

Wait: I can’t keep track. How many different entities are investigating Trump?

Four that I’m aware of.

  1. Special Counsel Robert Mueller. He’s only played a significant role so far in the Manafort investigation. With Cohen, he’s just getting warmed up.
  2. The Southern District of New York. These prosecutors investigated Cohen and facilitated his guilty pleas. SDNY is primarily focused on campaign financing violations. That investigation is ongoing. And they are also focused on any wrongdoing by the Trump Organization.
  3. Manhattan District Attorney’s office. They have enough information to prosecute Manafort as a fallback in the case that Trump pardons Manafort of federal crimes. Plus, they’re also investigating the Trump Organization’s payments to Daniels and McDougal, along with other Trump Organization potential wrongdoing.
  4. The New York State Attorney General’s Office. They’re currently focused on investigating the recently dissolved Trump Foundation.

This means the spin machine (Trump’s tweets, surrogates, Hannity, etc.) has been working overtime for little pay-off. Why? Their propaganda was aimed in the wrong direction. Much of the current and upcoming damage to Trump and his family has nothing to do with Robert Mueller. Trump spent so long trying to poison the well for Mueller with the American public that he forgot Mueller wasn’t the only prosecutor with eyes on Trump, his organization, and his foundation.

 

Why all the different investigations, especially since some are for the same crimes?

Federal and State laws both differ and overlap in interesting ways, which means when you commit a crime, it is possible to violate two distinct sets of laws for the very same crime. For example, many people assume all big crimes, such as murder, are federal crimes. That’s actually inaccurate. Murder, unless it’s something like killing a federal official, is usually considered a state crime. But there are circumstances where a defendant could be prosecuted for killing someone in multiple jurisdictions.

 

What are the immediate political implications?

Trump and the other Republicans won’t be winning any extra votes, that’s for sure. It will hurt the Republicans somewhat in the midterms and depending on how far it goes, perhaps well beyond. No way Trump comes out of this like a shiny penny in the general public’s eyes. As for impeachment, the Democrats won’t bring it up now. Trump’s supporters will come out of the woodwork to vote in the midterms against impeachment, so it’s not worth the political risk at this time. The Democrats will instead focus on a culture of corruption in the Trump administration.

As for the Republicans, they will try to distance themselves where possible and when strategic. But as always, for now, Trump remains popular with his base and Republicans in general. Because of this, and without any new information, the recent attempt by some Democrats to use this new information to delay the Kavanaugh confirmation hearing is likely to be unsuccessful.

 

Finally (I know, right): What does all this mean for Trump?

Trump is in legal trouble. Many people think that Friday’s news about Weisselberg’s immunity was a sign of momentum. And it may be, but this immunity is actually old news. It happened months ago. Perhaps the information he provided has already dried up (it led to the Cohen guilty pleas).

However, it could be a sign of much more trouble for Trump if Weisselberg’s immunity went farther than speaking against Cohen. Probably nobody on earth knows more about Trump’s business dealings than Weisselberg himself. If he was granted immunity for other possible violations of the law, then Donald Trump’s legal troubles are about to explode.

Think about it: Trump is a person who just said on national television that, in his way of thinking, bank and tax fraud is common. Trump, throughout history, has opined he believes many significant crimes are not really that wrong because everybody does it. Catch my drift?

Now imagine if Weisselberg wanted to assist prosecutors in opening up the can of worms that is the Trump Organization. I’m getting a better idea why those tax returns were never made public. And I honestly believe Trump may eventually have to pardon his sons. They are in legal jeopardy. Everybody around them has flipped. They’re all that's left, along with the president.

Finally, Weisselberg was also the treasurer of the Trump Charitable Foundation. And we’ve already seen a Pulitzer Prize awarded to David Fahrenthold for investigating their wrongdoings. Imagine what prosecutors in Manhattan will discover with their resources and the possible cooperation of Weisselberg.

There may be impeachment hearings, but they won’t be until after the midterms, and only if the Democrats control the House. Even then, it’s not assured that Trump leaves office. However, that could change with the onslaught of information we will be hearing in the future. Stormy Daniels’ attorney, Michael Avenatti says much more is to come. We are only in the second quarter of a four-quarter game.  

This is the only story that matters. I’m not one of those “impeach trump” people. I’ve always frowned on those people who called for impeachment as overzealous reactionaries. I’ve said talk of impeachment was ridiculous, with no proven or suspected offense even worth the time thinking about it.

But this week’s events changed everything for me. Our president may have committed felonies. Any more evidence that emerges is more likely to further implicate rather than exonerate Trump. “Flipping” tends to be a slippery slope. Trump’s presidency, and/or his life after, is in serious jeopardy.  

I cannot predict how voters will react with any certainty.  After all, I  said on CNN that his first debate in the Republican primaries would sink him.  What I can say, with a high degree of confidence is this: Tuesday, August 21, 2018, was the most pivotal day in the presidency. It could turn out to be the most significant political news day of the century. It’s why I called it the Sharknado of news. There’s bright red blood in the water, and it’s presidential.