Plumbing the Entrails of the Cohen Plea Deal

One of the less-minor mysteries of yesterday’s twin courtroom bombshells was the absence of a formal plea deal between Cohen and the government.  Fortunately we have expert local lawyer David Oscar Markus to explain it to us:

The parties agreed that no variance arguments can be made, up or down. This is a BIG concession by Cohen’s lawyers and is sometimes seen in the SDNY when there is cooperation credit coming. Without the cooperation credit, it’s a terrible deal for Cohen. He’s basically pleading guilty to all of the offenses and not getting anything in return other than the 3 points. If he pleaded straight up, he would at least be able to argue for a sentence under the guidelines. Even with the potential of a cooperation deal, it seems very harsh.

That’s why it’s obvious that Cohen is cooperating, even though it’s not specifically mentioned in the plea agreement. Otherwise, the deal makes no sense. He said as much during his colloquy today and his lawyer, Lanny Davis, has been all over the news saying the same thing.

If he gets cooperation credit, the defense will be asking for a significant reduction below the guidelines — probably all the way to probation.

Okay.  Now I get it. Thank you.

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3 Responses to Plumbing the Entrails of the Cohen Plea Deal

  1. vic says:

    The mystery is why he did this, considering that it is NOT A CRIME to pay hush money from a personal or corporate account, during a campaign, if the reason isn’t solely to help the campaign. It’s simply not a crime and the FEC and Courts have already settled this matter. John Edwards, for example.

    (and if you don’t believe that, you might hold your breath for all the crimes that are going to be charged against the people in the Clinton campaign, the FBI, and the media, involved in the Steele dossier…oh, wait…)

    A matter has not been adjudicated just because some Federal Prosecutor says that you committed a crime. EVER. It would not pass muster if it even went to trial. I am positive of that. It is simply not a crime to pay someone to keep their mouth shut about something that is not a crime. If it was, we’d have to shut down every court in the land as being part of a giant criminal enterprise, because it happens there every day.

    Cohen’s crimes were his own. Tax evasion, etc. Trump had no power to force him to commit those crimes, and as a lawyer, he’d know better. So why did he then also admit to crimes that just aren’t crimes?

    Either Cohen was ill served by his lawyer in this, OR, it’s a prosecutorial smoke screen that is entirely meant to make something ELSE happen (someone else to cooperate, confess, whatever). So it’s a nothingburger, unless and until it becomes something. If you’ve been paying any attention at all in the last couple of years, you know that Trump is not going to break down like a Perry Mason witness over this, especially if all that he’s accused of is, as HIS lawyers at least know, is not a crime.

    Meanwhile, in exchange for this Hail Mary nothingburger, Cohen takes a chance that in admitting to kidnapping the Lindbergh baby, that things will go easier for him on the prison time front re his ACTUAL crimes. That may be his gamble, but I wonder how it will play out when the nothingburger turns out to a really-nothingburger.

  2. It is a crime to make a campaign contribution in excess of the contribution limits. And that is what Cohen pleaded guilty to. Trump himself isn’t bound by the limits on donating to his own campaign (Buckley v Valeo) but Cohen is bound regarding donations to the Trump campaign. The circumstantial and now testimonial evidence is that Cohen made the payment’s at Trump’s direction. Implicitly, given the plea, they were campaign-related. (For all we know they discussed them in that context?) I don’t understand why this is hard to understand.

    It is a crime to pay someone money in excess of campaign contribution limits, whether hush money or otherwise, to advance a federal campaign that is not your own.

  3. Or, as another lawprof said on a private email list,

    At yesterday’s hearing, the government made the following statement about other evidence it would have introduced at trial in support of the campaign finance counts against Cohen, and presumably some of this evidence goes to the timing-and-intent issue:

    … hard copy documents, seized electronic devices, and audio recordings made by Mr. Cohen. We would also offer text messages, messages sent over encrypted applications, phone records, and emails. We would also submit various records produced to us via subpoena, including records from the corporation referenced in the information as Corporation One and records from the media company also referenced in the information. Finally, we would offer testimony of witnesses, including witnesses involved in the transactions in question who communicated with the defendant.

    In other words, they likely had copious proof of motive.

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