What the federal case that sent Michael Cohen to prison says about a possible case against Trump

In the long, salacious saga that begins with an adult film actress and may end with the history-making indictment of an ex-president, one court document could play a key role: the one that sent Michael Cohen to prison.

Cohen, who was Donald Trump’s attorney and fixer, pleaded guilty to various crimes that are laid out in 2018 federal court records. And, if you follow the money and parse the 40-page document in particular — a sentencing memorandum submitted by prosecutors in the powerful Southern District of New York — you can see the not-so-hidden hand of Trump.

Charged by prosecutors working for Trump’s Department of Justice, Cohen pleaded guilty to schemes that included an effort to subvert campaign finance laws by covering up a payment to adult film actress Stormy Daniels, who asserted that she had a one-night stand with Trump in 2006 at a Lake Tahoe hotel. She and another woman, a Playboy model named Karen McDougal who claimed a longer-lasting affair with Trump, were poised to go public just before the 2016 presidential election. Cohen arranged payoffs intended to shut them up, the memo says, although it was the Daniels hush money — $130,000 — that has become one of the presumed triggers of the New York case against Trump.

Trump has already said he expects to be arrested for his alleged part in the matter. And while the former president denies wrongdoing and rallies his supporters around him, there appears to be a clean line from the president’s checkbook to Cohen in the Daniels matter. The memorandum makes clear that the person who directed payments of hush money — and whom prosecutors say influenced the election in violation of campaign laws — is Donald J. Trump.

A tough case?

There’s been adequate ink spilled on the notion that prosecutors are going out on a limb in the investigation of Trump launched by Manhattan District Attorney Alvin Bragg. One argument critics make is that federal prosecutors declined to charge Trump in 2019 because Justice Department policy effectively barred charging a sitting president with a crime. Of course, Trump is no longer a sitting president.

“One would say Bragg is outside of his lane, but in this case, he’s on a completely different highway,” said constitutional scholar Jonathan Turley in a Saturday interview on “Fox and Friends Weekend.” “This is an effort by a state official to effectively prosecute a federal crime, a crime that the Department of Justice decided not to prosecute.”

Whether Bragg will revive those charges under his jurisdiction — the subject of wide speculation — remains to be seen, but some legal experts say the resuscitation of campaign finance violations is a dead letter: that the state prosecutors would have to stitch together a novel legal argument to get a conviction.

“The conventional wisdom in the mainstream media has ignored this memo while minimizing or mocking the ‘nitpicking’ prosecution of Trump,” Lanny J. Davis, Cohen’s attorney and legendary Washington spin doctor, told Grid on Sunday. “My point is that prosecutors thought this was a serious enough offense to send Michael Cohen to prison. Why do critics now say this isn’t a serious case?”

“At the direction of Individual-1”

In August 2018, Cohen pleaded guilty to eight counts, including tax evasion and campaign finance violations. The sentencing memo was filed in early December, and Cohen was sentenced a few days later to three years in prison.

The memo written by the Trump-era federal prosecutors in the Southern District of New York expresses great indignation over Cohen’s hush money scheme. The document specifically cited Cohen’s subversion of the sanctity of the U.S. elections system.

But unlike Justice Department press releases that focused on Cohen, the sentencing memo didn’t hold him up as a lone actor. In the document, Cohen’s actions are described as being carried out at “the direction of Individual-1.” There is no doubt about the identity of this figure. The document describes him as the man with whom two women “claimed to have had an affair,” aka Trump.

From the memo:

During the campaign, Cohen played a central role in two similar schemes to purchase the rights to stories – each from women who claimed to have had an affair with Individual-1 – so as to suppress the stories and thereby prevent them from influencing the election. With respect to both payments, Cohen acted with the intent to influence the 2016 presidential election. Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments.

“If Cohen is guilty of a felony, then so is the man who directed him to do the felony,” Davis told Grid. “And there is no dispute that the $130,000 payment to Stormy Daniels exclusively benefited Trump.”

Undermining democracy

In Cohen’s case, prosecutors specifically faulted Cohen for undermining the electoral process and sought a substantial prison sentence to punish him for that and other misdeeds.

“Cohen’s crimes are particularly serious because they were committed on the eve of a Presidential election, and they were intended to affect that election,” the filing states.

Some naysayers have argued that a state case built on the finer details of bookkeeping or campaign finance law don’t merit taking on an ex-president. But that didn’t stop the court from convicting the president’s lawyer, Cohen.

“Cohen’s commission of two campaign finance crimes … struck a blow to one of the core goals of the federal campaign finance laws: transparency,” the sentencing memo adds. “While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows. He did so by orchestrating secret and illegal payments to silence two women who otherwise would have made public their alleged extramarital affairs with Individual-1.”

In the process, Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election. It is this type of harm that Congress sought to prevent when it imposed limits on individual contributions to candidates. To promote transparency and prevent wealthy individuals like Cohen from circumventing these limits, Congress prohibited individuals from making expenditures on behalf of and coordinated with candidates. Cohen clouded a process that Congress has painstakingly sought to keep transparent. The sentence imposed should reflect the seriousness of Cohen’s brazen violations of the election laws and attempt to counter the public cynicism that may arise when individuals like Cohen act as if the political process belongs to the rich and powerful. Cohen’s submission suggests that this was but a brief error in judgment. Not so. Cohen knew exactly where the line was, and he chose deliberately and repeatedly to cross.

Cohen has appeared before the Manhattan grand jury, but he may have lessened his own credibility by pleading guilty to the federal charges, including his admission of making false statements to banks.

Davis, his normally loquacious attorney, would not comment on any aspect of the Manhattan DA’s case, including how the memo might intersect with charges — if Bragg brings any.

“The facts and documents speak for themselves,” he texted to reporters on Monday. “Facts do matter.”

Thanks to Lillian Barkley for copy editing this article.