Last week, in an otherwise incisive analysis of the Michael Cohen dumpster fire, National Review’s Andrew McCarthy wrote that it was “inconceivable” that “Cohen’s campaign-finance convictions are a get-Trump ploy.” Oddly, he arrives at this conclusion despite spending much of his piece poking holes in it.
McCarthy tends to turn into a wide-eyed ingénue whenever the subject of prosecutorial misconduct arises. Presumably, this is the result of the false-consensus fallacy that all prosecutors are as ethical as he is and was when he worked in the U.S. Attorney’s office prosecuting terrorists.
In October, he wrote that the infamous Steele dossier must be partly factual because he could not fathom that fellow career prosecutor, James Comey, “would have countenanced an investigation based on nothing.” McCarthy has since acknowledged that is precisely what happened.
In 2005, McCarthy described unscrupulous zealot and Comey chum, Patrick Fitzgerald, as “the best prosecutor I have ever seen . . . the straightest shooter . . . and most importantly, he is a good man.” We now know all three claims are false. McCarthy later acknowledged that Fitzgerald, during the Plame Affair, nailed Scooter Libby for obstructing the investigation of “a crime [Fitzgerald] already knew was not a crime.”
Flouting due process, trampling the Brady Rule, and fighting tooth and claw to convict a man he knows is not guilty are hardly the actions of a good prosecutor, straight shooter, or a good man.
Fast forward to last week, and here we go again.
McCarthy admits to being persuaded by arguments that the campaign-finance addenda to Cohen’s plea deal are bogus. He then makes the point himself, though not in precisely these terms, that this application of campaign-finance law is capricious and unconstitutionally vague.
His conclusion, that the Justice Department’s Southern District of New York is not engaged in a “get-Trump ploy,” does not intuitively follow from these premises.
McCarthy purports that there must be a fig leaf within the John Edwards case. Edwards allegedly used campaign funds to pay hush money. Though the Federal Election Commission cleared him of wrongdoing, the Justice Department indicted him anyway and a judge let the case go to trial. Edwards got an acquittal on one of six counts and the jury hung on the rest, before the DOJ finally dropped the case.
McCarthy threads the needle, implying that since five counts were not full acquittals, hypothetically, had the Justice Department retried Edwards on the remaining counts, a jury might have found him guilty of something. Apparently this keeps the door open for the SDNY’s present campaign-finance charade.
For a campaign-finance infraction to be a crime, however, there must be criminal intent. Cohen must have known or suspected that the hush money payouts ran afoul of obscure campaign-finance laws, McCarthy avers, but paid them anyway.
This should form an airtight defense for Cohen. By all accounts, as a lawyer he is a two of clubs.
Cohen started his career as an ambulance chaser, never mastered any area of law, and probably hasn’t so much as glanced at a law book since he finished middle of his class from what Politico reported was the worst law school in America. Cohen found a niche as a sleazy fixer specializing in resolving matters requiring discretion and, frequently, the exchange of hush money for nondisclosure agreements and still managed to botch it.
Meanwhile, a collection of veritable legal giants argues Cohen broke no campaign finance laws.
Sam Issacharoff, Reiss Professor of Constitutional Law at NYU, says, “it’s not pretty . . . but it’s not campaign finance crime.” Former FEC Chairman Bradley Smith determined that if Trump would have secured the NDA whether he was running for office or not then the payment is exempted as “personal use”—no crime. Charles Spies, head of national political law at Clark Hill in Washington, D.C., points out, “the Trump Organization has a long history of vigorously fighting to protect its reputation,” adding, “Mr. Trump likely would have tried to squelch these rumors, even without the campaign.” Alan Dershowitz says he tried in earnest but was unable to follow the SDNY’s impassable breadcrumb trail. Perhaps most emphatically of all, “whip-smart” Mark Levin found that even if the allegations in Cohen’s plea agreement were true, there was no campaign finance crime.
For the SDNY to have acted in “good faith” when they accepted Cohen’s plea, as McCarthy claims, they must have believed that Cohen “knowingly and willingly” broke campaign finance laws. The trouble with that assertion is, to have “knowingly” broken the law, Cohen had to actually know the law.
The probability that Cohen, who McCarthy describes as “not much of a lawyer,” had more legal insight than the aforementioned legal scholars is zero.
McCarthy may want to believe the best about his former colleagues from New York’s Southern District, but I doubt he truly expects anyone to give any such credit to a petty hustler like Michael Cohen.
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