…[E]ven if Trump denies that he knew about any of the questionable Cohen payments, he still might not be off the hook. If it can be demonstrated that he found out later about an illegal such payment but sought to cover it up, Trump might have committed one of the following felonies: a) being an accessory after the fact (18 U.S.C. 3), b) misprision of a felony (18 USC 4, especially by a public official), and c) obstruction of justice.
Multiple media reports have confirmed details of Stormy Daniels attorney Michael Avenatti’s bombshell Tuesday claim that the Michael Cohen–affiliated shell company that paid Daniels $130,000 for her participation in a nondisclosure agreement—Essential Consultants LLC—later received large sums from companies that have been or could have been affected by Trump administration decisions. Those companies are now attempting to explain why they paid Cohen—or, that is, attempting to explain why they paid him without using the words bribery and/or cash-for-access contribution to a sleazy hush-money slush fund—and the results are, simply put, ridiculous.
Bear in mind before you read these that Essential Consultants LLC describes itself in court documents as a “single-member LLC,” which means that it is solely owned by Cohen. It was created and registered in Delaware less than a month before the 2016 election and does not have any known employees, website, or physical office space. Avenatti’s report indicates that it identified itself to one bank as “a real estate consulting company that collects fees for investment consulting work.” Cohen is an attorney with a background in real estate, personal-injury law, and the New York City taxi business.
…[F]our entities paid a former personal-injury lawyer’s zero-employee paper company millions of dollars for advice about accounting standards, telecom reform, tax policy, antitrust law, the Affordable Care Act, and high-end investment opportunities in the same period that said company was also involved in nondisclosure payments to a pornographic actress and a Playboy playmate. Also, one of the companies that paid Cohen is now downplaying a previously disclosed connection to a Russian billionaire who has been affected by the type of sanctions that have been the subject of several suspicious interactions between Trump advisers and agents of the Russian government.
It’s possible this is all innocuous, that Cohen—a “fixer” for Trump who, with his knowledge, used cash from this shell company to pay hush money to a pornographic actress for an extramarital affair—also maintained an aboveboard consulting firm, for which these payments are legal and legitimate. But if that isn’t true, if what we’re looking at is the outline of a broad network of improper payments and illegal contributions, then we have something truly unprecedented. No, it’s not Watergate or Iran-Contra—where the president and his executive branch took extraconstitutional actions that threatened the integrity of the entire system. But it is the kind of blatant self-enrichment—corruption in the traditional sense—that we rarely see at this level of American politics, or at this scale.
…President Trump is directly involved in this unfolding scandal. He now admits that he reimbursed Cohen to buy Stormy Daniels’ silence. And given his close relationship with Cohen, it’s possible he knew Fortune 500 companies and Russian oligarchs were funneling millions of dollars to the same account used to pay for his liaisons. Even if Trump is nominally disconnected from some of Cohen’s activities, what we already know about Daniels and the web of payments to keep her silent is damning. Add the ongoing scandal of Trump’s self-enrichment from the office of the presidency, and you have a previously unseen level of corruption from the White House.
This is all the more egregious because, in addition to his own corruption, Trump is presiding over a host of corruption scandals in his Cabinet, from nepotism and abuse of taxpayer funds at the Department of Housing and Urban Development, to the torrent of petty graft at the Environmental Protection Agency, where Administrator Scott Pruitt is under fire for his ties to lobbyists and other unethical behavior.
I have been extremely reluctant to speculate about whether the investigations by special counsel Robert Mueller and other federal law enforcement authorities will produce results that could present a real danger to the Trump presidency. I retain that reluctance. But Tuesday night’s reports that over the past year or so multiple corporations, including one associated with Russian oligarch Viktor Vekselberg, deposited large sums in an account held by a shell company controlled by Michael Cohen, Trump’s personal lawyer, have a different feel than anything that’s come before.
Even if Pence didn’t know of a potential bribery scheme, there is reason to suspect that he participated actively in the cover-up and the obstruction of the investigation. So it makes perfect sense why Pence would be calling for an end to the investigation—because he is clearly an uncomfortable witness and potentially one of its targets.
From the just-above piece (at some great length [emphasis added]!):
Is it crime or is it slime?
That is a question that prosecutors at the U.S. Attorney’s Office for the Southern District of New York are likely asking themselves as they investigate allegations that President Donald Trump’s personal attorney received $4.4 million in bank deposits, including almost $3 million in payments from a wide array of corporations after Trump’s election.
Recent reports allege that Columbus Nova, a firm with ties to Russian oligarch Viktor Vekselberg, paid Michael Cohen $500,000 in the past year. Other payments were made by telecommunications giant AT&T, Swiss drugmaker Novartis, and South Korean airplane manufacturer Korea Aerospace Industries. All of these entities have confirmed making payments to Cohen through his firm, Essential Consultants, which Cohen established in October 2016.
The companies claim that payments were made for Cohen’s expertise spanning a sweeping range of topics, including accounting, tax reform, health care, real estate, and antitrust. The breadth of this expertise is so breathtaking as to strain credulity, leading a suspicious mind to wonder whether these payments were not in fact for expertise but instead for influence.
While investigators likely know far more about the case than has been publicly disclosed, they are no doubt grappling with whether these transactions constitute crimes or just smell bad. Of course, prosecutors may charge a crime only when they have evidence that a specific statute has been violated. Sometimes payments to gain access may look bad but violate no laws. To determine the difference, prosecutors first need to understand the facts.
Then comes the harder part of making sense of it all.
If Cohen was just freelancing, accepting payments for his insights into how Trump operates and not coordinating with anyone in the Trump administration, then there may be no crimes at all. If Cohen was instead lobbying on behalf of any of these companies by contacting government officials, including Trump, on their behalf, he may have violated federal lobbying registration laws, which punish knowing and corrupt violations with up to five years in prison.
The more interesting scenario, of course, is whether members of the Trump administration were aware of these payments or even shared in them. Such arrangements are sometimes referred to as pay-to-play schemes, in which private entities receive favorable treatment, such as lucrative government contracts, only if they first pay the public officials who make the decisions. If Cohen was sharing any of his payments with government officials, all of them could be guilty of a variety of federal offenses.
Depending on the facts, prosecutors may be looking at bribery, extortion, or conspiracy to commit these crimes. Bribery and extortion are two sides of the same coin—bribery is usually charged when the public official accepts a “thing of value” in exchange for an official act. Extortion occurs when the public official demands a thing of value as a condition of doing business in interstate commerce.
When I served as U.S. attorney for the Eastern District of Michigan, I supervised the prosecution of former Detroit Mayor Kwame Kilpatrick, who was convicted of bribery and extortion in connection with awarding public contracts, among other crimes, in 2013. His was a classic pay-to-play scheme, in which contractors were required to make payments or hire a favored subcontractor if they wanted to be considered for lucrative city public works contracts. Kilpatrick and more than 30 members of his administration and individuals doing business with the city were convicted of various federal offenses. Kilpatrick was sentenced to 28 years in prison.
Some recent developments in the law have made it harder for prosecutors to make a case of bribery or extortion. In 2016, the U.S. Supreme Court reversed the public corruption conviction of former Virginia Gov. Bob McDonnell and narrowed the definition of what constitutes an “official act.” In that case, McDonnell and his wife accepted $175,000 in gifts from a business owner who was promoting a dietary supplement. In exchange, McDonnell set up meetings and hosted a promotional event for him at the governor’s mansion. The Supreme Court held that these acts were not official acts for purposes of proving bribery because they did not constitute some formal exercise of government power. The court stated: “To qualify as an ‘official act,’ the public official must make a decision or take an action on [a] ‘question, matter, cause, suit, proceeding or controversy,’ or agree to do so.” The court cautioned against an interpretation that would permit prosecution of commonplace interactions between politicians and their constituents, even if its decision would lead to conduct that is “distasteful” or even “tawdry.” In essence, swamps will be swamps.
The Court’s opinion in McDonnell has had direct consequences on public corruption prosecutions. The 2015 convictions of former New York State Assembly Speaker Sheldon Silver and state Senate Majority Leader Dean Skelos were overturned on the basis of the McDonnell decision.
Which brings us to Cohen. If Cohen was merely providing access to Trump or members of his administration, then prosecutors will be unlikely to charge public corruption offenses against any of them. Instead, they would need to show that administration officials took formal government action in exchange for payments or other things of value.
A very novel question could emerge as to whether a tweet or threatened tweet could amount to an official act for purposes of extortion. Could the crime of extortion be established if, hypothetically, President Trump threatened to post a tweet that could adversely affect a company’s stock price unless the company paid Cohen?
One theory that remains intact is conspiracy—if prosecutors could prove that Cohen and administration officials agreed to take official acts in exchange for payments, and that one of them committed some overt act in furtherance of that agreement, then the crime of conspiracy could be established, even if no official act ever occurred. An overt act is different from an official act. An overt act is an element of any conspiracy case and need not be an illegal act, just some conduct that helps advance the goal of the conspiracy. An overt act can be a phone call, a meeting, or another innocuous act, as long as it helps promote the scheme.
A thornier question is raised if Trump simply knew about the payments to Cohen for “consulting fees,” which Cohen would then use for Trump’s benefit to pay hush money to Daniels and others. Would such conduct amount to a crime? It could, but only if Trump agreed to an illegal scheme and that someone would commit an overt act in furtherance of the scheme. The facts, as always, will matter. If no public official performed an official act in exchange for the money, then crimes of bribery or extortion cannot be charged. However, if Cohen engaged in a scheme to defraud the companies by offering influence he did not intend to deliver, then he could be charged with mail or wire fraud if he sent an invoice or even an email by mail or any electronic means. Anyone who conspired with him to execute this scheme, including Trump, could also be charged.
Michael Cohen allegedly told Qatari investor Ahmed Al-Rumaihi in 2016, when Al-Rumaihi was running a $100 billion Qatari government investment fund, that he’d have to pay Cohen a personal $1 million “fee” in order to be considered for the Trump administration’s planned infrastructure initiative.
A law enforcement whistleblower came forward to the New Yorker to take responsibility for a leaked financial document called a suspicious-activity report filed by Cohen’s bank about his shady transactions because, according to the official, other damning suspicious-activity reports in a Treasury Department database appeared to be disappearing—or being erased.
The FBI is investigating the circumstances surrounding a $150,000 deal between Cohen and South Korean aerospace firm Korea Aerospace Industries made after the 2016 election.
A new cache of Cohen’s text messages reportedly show the Trump lawyer was actively trying to strike a deal on a Trump Tower in Moscow as late as May 2016 as Trump was wrapping up the Republican nomination. According to the messages, Cohen was also considering a trip to Moscow for high-level meetings with government and business leaders. Cohen told Congress he gave up on the project much earlier in January 2016.
President Trump’s new financial disclosure forms, released Wednesday [2017 and 2018], included—for the first time—more than $100,000 in payments to Cohen in 2017. The reason for the payment was not disclosed, but its sudden appearance seems to indicate not only that Trump knew about the hush payment to Stormy Daniels, but reimbursed Cohen, meaningboth Cohen and Trump have been lying.
Although it’s unclear exactly what kind of assistance Saudi Arabia and the UAE may have provided, or been willing to provide, to Trump it is illegal for foreign governments to be involved in U.S. elections.“But two people familiar with the meetings said that Trump campaign officials did not appear bothered by the idea of cooperation with foreigners,” notes the [New York] Times. The paper also doesn’t downright say it but raises suspicion that maybe this meeting could help explain some of Trump’s moves while in office:
Since entering the White House, Mr. Trump has allied himself closely with Saudi Arabia and the Emirates. His first overseas trip was to Riyadh. He strongly backed Saudi and Emirati efforts to isolate their neighbor Qatar, another American ally, even over apparent disagreement from the State and Defense Departments.
This month, Mr. Trump also withdrew from an Obama administration nuclear deal with Iran that both Saudi Arabia and the United Arab Emirates had campaigned against for years, delivering them their biggest victory yet from his administration.
Donald Trump may still be hiding the White House visitor logs, but it would still be more interesting to get a peek at the schedule for Trump Tower. There was the well-known meeting between Trump’s senior campaign staff and Russian operatives during the campaign, the more recently discovered meeting with representatives for Saudi Arabia and the UAE, andCNN is now reporting that Michael Cohen lined up a Trump Tower meeting with Russian oligarch Viktor Vekselberg less than two weeks before Trump took office.
Vekselberg is the head of Russian investment firm Renova Group, and together with a cousin formed the American company Columbus Nova. That company poured more than $1 million into Essential Consultants, the letter-drop/shell company which appears to have served as an all-purpose corruption hub, making Donald Trump’s porn-star payoffs and accepting contributions from US companies, foreign companies and foreign governments seeking an edge with Trump. Agents working with Special Counsel Robert Mueller stopped Vekselberg at a New York-area airport earlier this year, likely in connection to his payments to Cohen.
But while Columbus Nova has admitted to the payments, the company has made several statements that Vekselberg was not involved … a position that is much more difficult to maintain when, at about the same time these payments began, the Russian oligarch and Trump attorney were together at Trump Tower for a very specific purpose:
A person familiar with the meeting told CNN that Vekselberg and Intrater met with Cohen and discussed improving US-Russia relations.
In another recently discovered instance, Cohen was found to have taken at least $400,000 to arrange a meeting between Donald Trump and the president of Ukraine. Ukraine got their meeting, and not only did Cohen collect the money, Ukraine dropped an investigation into Trump campaign chair Paul Manafort.
The Vekselberg meeting appears to be just another example of how Essential Consultants was essentially nothing but plain old-fashioned bribery.
What’s really amazing is not that Cohen had this meeting—there have been plenty of examples of this kind of behavior. What’s amazing is that it was still going on in January 2017, months after Trump and everyone in his campaign knew that the FBI was actively investigating ties between his campaign and Russia.
Perhaps Trump assumed that, once he had his hands on the FBI, he could make everything neatly go away. Perhaps he didn’t care.
There’s still a question of whether any of the millions given to Essential Consultants ended up not just paying Donald Trump’s porn-star tab, but in his bank account. But even if it didn’t, it’s clear that the Trump team was selling access. And doing pretty well at it.