With the stunning fury of powerful right cross followed by a devastating left hook, Donald Trump was staggered by developments on two separate legal fronts. This one-two combination occurred within the space of one hour in two separate federal court rooms in Alexandria, Virginia and New York City, hundreds of miles apart.
The first blow involved the conviction of Donald Trump’s former campaign chairman, Paul Manafort, on eight felony count charges involving two counts of bank fraud, one count of failure to disclose a foreign bank account, and five separate charges involving tax fraud. The jury deadlocked on ten counts. Ordinarily, a hung jury is considered to be a win for the defense, but not here where the defendant faces 7-9 years under the sentencing guidelines, and the government will have the right to argue that the counts where the jury deadlocked are relevant conduct and could be used to enhance the sentence.
The jury’s verdict returned in Alexandria Virginia was a resounding win for Mueller because the prosecution had to contend with a difficult trial judge who frequently made disparaging remarks about it. In case anybody doubts it, a verdict under these circumstances shows that the trial team is competent, well-prepared, and can take a punch during the course of the trial. The true impact of this verdict is that any other potential defendants will think twice before they decide to hardline Mr. Mueller as his investigation continues.
The guilty plea by Donald Trump’s long-time personal lawyer, Michael D. Cohen, was even more stunning because of his admissions and its unexpected timing. The details of his guilty plea to an Information and an investigation led not by Mr. Mueller, but by the United States Attorney’s Office for the Southern District of New York, allege direct involvement by Donald Trump in two illegal payments to two separate women during the 2016 presidential campaign.
Michael Cohen pleaded guilty to five counts of tax evasion involving over $4 million from unreported personal income and a separate bank fraud charge where he failed to disclose $14 million in debts in his application for a home equity line of credit which was the source of one of the payments. He also pleaded to two separate charges involving illegal campaign contributions during the 2016 campaign cycle. According to news reports, the defense contends that his sentencing guidelines range is between 46 and 57 months imprisonment, and the government contends the range is from 51 to 63 months unless there is a downward departure for substantial assistance to the government.
The blockbuster charges involved Cohen’s admissions that Donald Trump had directed him to arrange payments to two women during the 2016 presidential campaign in order to keep them from speaking publicly about affairs they claim to have had with Donald Trump. The plea by Mr. Cohen was announced by Deputy United States Attorney Robert Khuzami, who stated during his press conference after the plea that an illegal payment made by Cohen was subsequently reimbursed in 2017 by the Trump Corporations by means of payments for fictitious legal services. The payments for fictitious legal fees amount to powerful corroboration of Cohen’s allegations about Donald Trump.
Although the plea bargain agreement in the Southern District did not contain provisions indicating Michael Cohen had agreed to cooperate with either the Southern District or Robert Mueller, in the real world it is inevitable that Cohen will end up cooperating. First of all, his guilty plea yesterday stated that he was directed to make the illegal payments by an unnamed presidential candidate, who we all know is Donald Trump. Secondly, one of his lawyers, Lanny Davis, was on television this morning stating that his client is ready, willing and able to meet with Mr. Mueller and has important evidence for him, including evidence of collusion. And third, the Cohen forces have previously released an audio tape of Trump talking to Cohen about the mechanics of the hush money payment. Although Cohen would be a witness with damaged credibility, he could well lead the federal authorities to documents and/or bullet-proof witnesses who would shed light on the investigation of collusion between the Russians with the Trump campaign.
We have not even discussed the surprising development this weekend where it was reported that the White House counsel, Don McGahn, was interviewed by Robert Mueller on three occasions for over 30 hours, after the prior Trump legal team waived executive and attorney-client privilege. Whether McGahn gave Robert Mueller information that constitutes a smoking gun (i.e., Donald Trump told me he did it), nobody is interviewed for that long without hurting the target. Despite the statement by Mr. McGahn’s lawyer that the 30 hours of interviews did not incriminate Mr. Trump, it has been my experience through the years that a witness interviewed that long always hurts the subject more than he admits to. Always, always, always.
So right now we have the unusual chain of circumstances whereby the following people appear to be giving evidence about Donald Trump: his former national security advisor (Flynn), his former deputy campaign advisor (Gates), his long-time personal lawyer (Cohen), and present White House counsel (McGahn). As to his former campaign chairman, Paul Manafort, who knows? His attorney, Kevin Downing, said after the verdict that his client was “evaluating all of his options at this point.” A cynic could interpret this as saying Manafort is available for a pardon – but if not, he has other options. Stay tuned.
Veteran defense attorney Joe Hayden is InsiderNJ’s legal analyst.