Friday, December 7, 2018

Individual-1's liability in the Cohen case

From former federal prosecutor Renato Mariotti:



[P]rosecutors concluded that Trump directed Cohen to commit the two campaign finance violations he pleaded guilty to. Those violations were felonies, and someone who directs a subordinate or agent to commit a crime is also guilty of that crime.

Those statements mean that in addition to Cohen's statement under oath, the evidence that prosecutors have in their possession is also consistent with the conclusion that Trump directed him to commit crimes. If prosecutors had contrary evidence, they would say so.

In addition, it is hard for me to believe that they would have made this statement if the *only* evidence they had was Cohen's say-so. If all they had was Cohen's assertion, they would have merely said that Cohen asserted that Trump directed him to commit those crimes.

That statement by prosecutors indicates that they have some level of corroborating evidence that convinces them by "a preponderance of the evidence" that Trump directed Cohen to commit those crimes. [...] Their citation to two paragraphs of the PSR (Presentence Investigation Report) indicates U.S. Probation agreed.

That is well below the standard in a criminal trial, which is "beyond a reasonable doubt." By any measure that is well above 51%. We don't know whether they could meet the higher burden. Another complicating factor is that Cohen is an attorney. Although it doesn't look like Cohen was acting as Trump's attorney in this context, I suspect that Trump's legal team would try to argue that Trump believed that this transaction was legal because an attorney was involved.

That's not a legal defense in itself, but it goes to Trump's state of mind, which the government would have to prove beyond a reasonable doubt. (It would be a defense if Trump sought and obtained a legal opinion that this was legal, which it does not appear he did.)

By now you are aware that DOJ policy is that a sitting president can't be indicted while in office. But even if that was not DOJ policy, it is not clear that Trump would be indicted. What *is* clear is that federal prosecutors and Probation concluded he committed a felony.

[T]omorrow morning I'll record a new episode of my #OnTopic podcast with [Patti Vasquez] and guest [Neal Katyal], the former Acting Solicitor General who wrote the special counsel regulations.

Ed:  That bold emphasis is mine.  I think it's extremely important.
There's no question that the New York federal prosecutors are upset that Cohen did not want a full cooperation deal but yet wants credit for cooperating. There's no question that the New York federal prosecutors are upset that Cohen did not want a full cooperation deal but yet wants credit for cooperating.

The [earlier] filing by Mueller's team was much more positive about Cohen's cooperation with them. One question we didn't know the answer to before today [...] was *why* Mueller recently charged Cohen. Now it appears Cohen may have wanted to be charged so Mueller could file a sentencing memo.

Because Mueller made a separate filing, the judge can read Mueller's views in addition to the New York federal prosecutors when determining his sentence. I remain convinced Cohen will receive a sentence significantly below the 51-63 month guidelines range.

But the key takeaway from today remains the conclusion that Trump directed Cohen to commit a crime, which I discussed at length in the prior thread. There is no question in my mind that the federal prosecutors (including their leader Rob Khazami) wrote that very carefully.




What's a little tricky is to keep separate the cases against Cohen.  This sentencing memo today was for the case in the Southern District of New York for tax evasion and campaign finance violations.  The more recent case and previous sentencing memo was from the Special Prosecutor's charge of lying to Congress about the Trump Moscow project.

UPDATE:



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