Donald Trump Vs. Donald Trump’s Lawyer: Will Trump Plead Ignorance?

December 14, 2018

Trump lawyer Michael Cohen says Trump ordered him to make the hush money payments to Stormy Daniels and Karen McDougal weeks before the 2016 election. An unusual statute covering campaign finance could help Trump, says former financial regulator Bill Black

Trump lawyer Michael Cohen says Trump ordered him to make the hush money payments to Stormy Daniels and Karen McDougal weeks before the 2016 election. An unusual statute covering campaign finance could help Trump, says former financial regulator Bill Black


Donald Trump Vs. Donald Trump’s Lawyer: Will Trump Plead Ignorance?

Story Transcript

SHARMINI PERIES: It’s The Real News Network. I’m Sharmini Peries, coming to you from Baltimore.

We all woke up this morning to the news that U.S. President Donald Trump had instructed his lawyer to make payments to Stormy Daniels and Karen McDougal during the 2016 presidential campaign to keep them silent about extramarital affairs. And Trump knew what he was doing was illegal, according to his former personal lawyer Michael Cohen. Now, Cohen made this explosive statement in a televised interview on Friday morning on ABC with George Stephanopoulos. Let’s listen.

MICHAEL COHEN: He directed me, as I said in my allocution, and I said as well in the plea, he directed me to make the payments. He directed me to become involved in these matters. I give loyalty to someone who, truthfully, does not deserve loyalty.

GEORGE STEPHANOPOULOS: He was trying to hide what you were doing, Correct?

MICHAEL COHEN: Correct.

GEORGE STEPHANOPOULOS: And he knew it was wrong?

MICHAEL COHEN: Of course. You have to remember at what point in time that this matter came about. Two weeks or so before the election. Post the Billy Bush comments. So yes, he was very concerned about how this would affect the election.

SHARMINI PERIES: This was Cohen’s first interview since he was sentenced to a three-year prison term on Wednesday. The payments were intended to conceal the affairs that the two women, a former Playboy model and adult film star, had had with him. Now joining me to discuss this damaging revelation for President Trump is Bill Black. Bill is a white-collar criminologist, former financial regulator, and associate professor of economics and law at the University of Missouri Kansas City. Good to have you with us, Bill.

BILL BLACK: Thank you.

SHARMINI PERIES: Bill, let’s start off with the legalese here. What does allocution mean, and what did Cohen intend to communicate here?

BILL BLACK: Allocution means that to plead guilty, and have to explain to the court in your own words what you did that was criminal, and that you knew, basically, that you were committing this kind of criminal act.

SHARMINI PERIES: Now, early this morning after the interview, President Trump tweeted. And in his tweet he said: “I never directed Michael Cohen to break the law. He was a lawyer and he is supposed to know what the law is, and he said that it is called ‘advice of counsel.’ And a lawyer has a great liability if a mistake is made. That is why they get paid,” Trump wrote. What do you make of that?

BILL BLACK: OK. So this is really important, and has not been explained in national news reports. First thing. This is an unusual statute, this campaign violation, where it is only criminal conduct if you can establish as a prosecutor what we call specific intent. What that means is everybody has heard the phrase “Ignorance of the law is no excuse.” And that’s true through the vast bulk of criminal law. It is not for this kind of claim. You have to actually show to prosecute Trump, hypothetically, that he knew that what he was doing was a violation of the law. You can see why that would be much more difficult for prosecutors.

And and here’s the key thing, right. This protection doesn’t exist for normal people. This protection is only put into the law to protect elite white-collar defendants. So for example, other specific intent crimes are elite banking fraud. Now, if you go take money through a fraudulent statement on your bank statements, they don’t have to prove specific intent to get you. But to go after the CEO, lots of those frauds requires specific intent. And of course campaign finance–who makes laws? The legislators who love to get campaign contributions. So they have made it incredibly difficult to prosecute people who give them money. And none of this is even being mentioned in the national press reports.

OK. So we’ve got this heavy obligation. And you can see why this is, why it is so valuable for the prosecutors, why it takes such a significant investigation to get two of the three folks who were in the room to say yes, we knew exactly that that’s why this was being done. This was being done to influence the election. Which is also critical under the law to get a prosecution. And Donald Trump knew that this was being done in a criminal fashion.

So Donald Trump is trying to reverse it, obviously, from hearing from his lawyers. Now, this is, of course, the fifth or sixth or seventh version Donald Trump has told. Remember, he used to say he didn’t have anything to do with this. He didn’t know about it. Turns out he was in the room, and directed that it would be done. OK. Donald Trump is now saying, well, I talked to a lawyer. And if the lawyer actually tells me it’s legal, then it would often be considered a valid defense to a specific intent crime that the lawyer told you something that was untrue; that you could lawfully violate the statute. Right? But that’s, of course, not what happened here. And remember, that tells you something else critical about these kinds of elite white-collar criminals. Their key advantage is they get to talk to the lawyer first before they commit the crime, so that the lawyer can help them do it in a way that ain’t a crime. But that’s not what happened, according both to Cohen and to Picker. Picker’s the guy that runs the holding company that runs the National Enquirer that was–is the big friend of Donald Trump and was deliberately working with Trump to try to suppress all kinds of negative stories; to what we call “catch and kill.” To get exclusive agreement that you could only talk to us–like, if you’re Stormy Daniels–and then we never run the story, to suppress it.

SHARMINI PERIES: All right, Bill. Now, Cohen was charged with many other criminal offenses, like tax evasion, bank fraud, lying to Congress. And for all of this and for protecting President Trump in a lie, all of this, he only got three years of a prison sentence. What do you make of this sentence?

BILL BLACK: So this sentence is pretty much right in the heart of the sentencing guidelines. So this is the norm. And he maybe got, you know, about three to four months under the sort of the exact average for this kind of thing, for cooperation. Now, for really extensive cooperation you can often get what we call downward departures in sentences that are two, five, sometimes 10 years. So it’s not a particularly significant benefit that he got through this cooperation. If you’re asking the broader question, wait a minute. We have people who go to prison for many years for really minor things. This is something that strikes at the heart of democracy. And even with not just one offense, but all these offenses, some of which measured in the millions of bucks in terms of tax evasion and such, he’s getting a ridiculously low sentence. Well, then, I would say welcome to my world of white-collar criminology. Because we have a system where elites don’t pay the same price.

SHARMINI PERIES: Indeed. Bill, finally, what has come out of this Cohen conviction, and the negotiations he’s been undergoing? Is this incriminating evidence here as far as Trump is concerned?

BILL BLACK: Yes. And a judge has accepted a guilty plea, meaning that in this case he’s examined the facts and said yes, this would constitute a felony. And the person who directed it, according to everybody other than Trump who was at the meeting, was the president of the–or the then candidate for the presidency of the United States, now President of the United States, Donald Trump.

SHARMINI PERIES: All right. Bill, as always, I thank you so much for joining us here on The Real News Network.

BILL BLACK: Thank you.

SHARMINI PERIES: And good to have you here on The Real News Network. Thanks for joining us.