MULTI-UPDATES: Michael Cohen In A Nutshell

Mark Penn begins his latest, and typically excellent, article with the following trenchant observation:

After bilking corporations out of millions of dollars for "insight" into his client, failing to pay his taxes, trying to entrap his client, and pleading guilty to lying to Congress, now-disbarred attorney Michael Cohen took his best shots at President Donald Trump, calling him a liar and a cheat. The testimony brought Congress to a new low after years of dead-end investigations of supposed Russia-Trump conspiracies.

It may be worthwhile to briefly review how we got to this point, and what the Cohen angle is really about.

Like just about everything else in the Russia Hoax, and as nearly as anyone can tell, Michael Cohen's travails began with the infamous Steele "dossier." When she wasn't honing her mid-life ham radio hobbyist skills, Nellie Ohr--former CIA analyst and wife of Bruce Ohr, a high DoJ official and (yes) FBI informant--browsed through NSA databases on behalf of Glenn Simpson and Fusion GPS, in search of opposition research information regarding anyone associated with Trump. Courtesy of James Comey and the FBI, who made their access to NSA databases freely available to Nellie and Fusion GPS.

In early summer of 2016, as the campaign season was heating up, Nellie discovered that a Michael Cohen had traveled to Prague. Whether or not Nellie really assumed that the world only contained one Michael Cohen who might travel to Prague we cannot say for sure. However, by fall of 2016 the FBI's Crossfire Hurricane investigation of Trump and his campaign was in need of a refreshed narrative, due to the fact that none of the original subjects were any longer with the Trump campaign. Either assuming for no apparent reason that only one Michael Cohen existed or, more likely, figuring that the coincidence of names was close enough for government work, the FBI and Chris Steele wove a new narrative about Cohen as the go between Trump and his masters in Moscow. And that was crucial to obtaining the first FISA:

As I argued in The FBI: Working Hand In Glove With Clinton Operatives, Cohen's supposed travel to Prague, usually regarded as an obscure miscue in the dossier, in fact was crucial to obtaining the FISA coverage that was sought. The supposed Cohen to Prague travel allowed the FBI and DoJ to claim to the FISC that they had some sort of concrete verification of information in the dossier's narrative. The FBI claimed to the FISC that Steele's source said Cohen was coordinating Trump/Russia collusion through "clandestine" meetings with Russian intel operatives in Prague--and we verified Steele's source information regarding Cohen's travel through NSA databases. That would surely have appeared to a FISC judge as raising the dossier to the level of something like probable cause, and would have made the FBI appear to have been doing solid investigation--rather than dealing in manufactured narratives funded by the Clinton campaign.

So, when Team Mueller took the field to pursue the Russia Hoax, Cohen found himself directly in their crosshairs. The supposed Prague trip looked like the most solid, confirmable factoid that could be said to provide the "dossier" with some degree of credibility. The whole story has been thoroughly debunked by now (although the tin foil hat crowd on the left still live in hope of somehow "confirming" it). In the meantime, however, Team Mueller had turned Michael Cohen's life inside out, and discovered the financial shenanigans that Cohen had been up to. Or as Penn puts it:

... Cohen ... was investigated in the first place because of the Steele dossier and these false claims of his Prague meeting. But special counsel Robert Mueller’s scorched-earth investigation was never about just verifying the dossier; it was always about fully investigating everyone mentioned in it and all of their financial dealings, and even their family members.

Unfortunately for Cohen, that meant reviewing all his finances and banking records — and that exercise revealed Cohen was running a racket selling his supposed insights into Trump, failing to pay taxes, and committing bank fraud as the value of his taxi medallions plummeted.

That bit about "family members" turns out to have been very important. Initially, Cohen loudly proclaimed his loyalty to Trump, but when his wife's name appeared on some of the financial documentation he folded. To make a longish story shorter, here's how Lynne Patton explained it on Facebook:

4) ... the ONLY reason Michael Cohen “turned on” the President of the United States is because Mueller threatened to throw his wife in jail for up to 30 years. ... She is the co-guarantor of a $20M personal loan that Mueller discovered Michael secured back in 2015 by falsely inflating the value of his taxi medallions – effectively making her part & parcel to the federal charge of “Making False Statements to a Financial Institution,” to which Cohen ultimately plead guilty. ...

5) Michael Cohen also told me (after they raided his apartment) that the reason why he elected to pay Stormy Daniels $130,000 by using his home equity loan – effectively committing bank fraud – instead of easily using the over $5M+ cash he has sitting in various stateside bank accounts is because his wife controls their finances and he simply did not want her to notice the missing money, as many husbands wouldn’t considering to whom it went. Period. Moreover, he confessed to me that he never imagined in a million years that Donald Trump would actually win the Presidency and that the misappropriation of his home equity loan would ever be exposed, ...

UPDATE: The ethics of this is a complicated topic as well as a controversial matter of public policy, but Patton is stating--whether she understands this or not--that Cohen specifically told her that Team Mueller engaged in plea negotiation tactics that were at least questionable if they had reason to believe that Cohen's wife was not aware of Cohen's criminal conduct that involved her name as attached to various documents. Coercing a guilty plea by threatening to prosecute a person whom they had reason to believe was not involved in the crime would certainly transgress prosecutorial ethics.

As Mueller learned, none of this has anything to do with Trump and Russia--or with Trump at all. However, faced with the choice of cooperating with Team Mueller or seeing his wife go to jail, Cohen hired a new lawyer who would work well with Team Mueller: Lanny Davis. The only angle that Cohen had to offer Team Mueller was the Stormy Davis payoff angle, under the theory that this somehow violated campaign finance laws. Mark Penn, as have other experts in campaign finance law, demolishes that theory in short order:

Yes, Trump was behind payments to women who may have had stories to tell. He and his counselor, Rudy Giuliani, already admitted they reimbursed Cohen for any payments he made. The stories these women had to tell were embarrassing but were not about any illegal behavior. It was not a crime to pay for their stories at any time, in any way. They were personal, not campaign expenditures. 

This legal point was litigated in the past with the trial of former Democratic presidential candidate John Edwards, and the FEC has ruled that the Edwards payments — even from donors — were not campaign contributions. His checks to his paramour were not campaign expenditures. 

The fact that prosecutors in the Southern District of New York pushed Cohen to plead guilty to campaign violations for his payments to Stormy Daniels does not change the fact that it was not a crime at all to make those payments.

In other words, it's all pure agitprop. Cohen was muscled into pleading guilty to a non-crime to smear Trump and possibly provide an argument for impeachment. This ethically dubious maneuver was made possible because of Cohen's real frauds and tax evasion in which his wife--at least arguably--was implicated.

You may be wondering whether Cohen's plea to alleged campaign violations that were non-crimes says something about the nature of Davis' legal representation of Cohen. Supposedly Davis is representing Cohen pro bono, but of course he wasn't doing so out of the goodness of his heart--for Davis it has always been about somehow using Cohen to get at Trump. Now, Davis may be representing Cohen pro bono, but he's not actually doing it for free. He's getting subsidized through a Go Fund Me account, and is possibly being underwritten by other deep pocket Trump foes (Tom Steyer comes to mind). This is not idle speculation--we now that there is big money behind the "witchhunt." You may recall that after the election a former Dianne Feinstein aide, Dan Jones, received $50 million to continue the anti-Trump efforts. Bankrolling the Cohen effort would be logical for deep pocket Dems, and would also be relative chump change.

Obviously Cohen thought that going with Davis would benefit him in the long run. Nor am I saying that pro bono representation is incompatible with being paid by someone or some group of persons other than the client. However, in this situation it's easy to imagine that Davis, in his representation of Cohen, may actually be more concerned with pleasing those anti-Trump donors rather than pursuing what would ordinarily be considered to be Cohen's best interest--which is minimizing his jail time. The fact of the matter is, Davis is--on a far more exalted level--a bit like Michael Cohen. He's a fixer. A political fixer. He's not a criminal defense attorney, and has certainly never represented a criminal defendant in a high stakes case like this one. Not before, that is.

As it happens--and I hope this doesn't come as a surprise--I'm not the only person with questions about Davis' role. Constitutional law prof Jonathan Turley has even written an article about it: Lanny Davis is more proof 2018 is year of lawyers living dangerously. In his article, Turley clearly suggests that Davis' representation has skirted ethical corners in a way that could be damaging to his client, Cohen. What that further implies is not that Davis isn't a good attorney--that is not at all my point. It suggests that he's not truly committed to Cohen's interests, per se, but rather to those of Hillary or the Dem party or simply the anti-Trump cause, and that he's pursuing those interests with few scruples regarding his nominal client's interest. For example, Turley points out:

Making things worse is that Davis’ claim about the Trump Tower meeting suggested possible criminal conduct by President Trump, his son Don Jr., and others. Worse yet, the story planted by Davis, if true, would have implicated his client, Cohen, in false statements made to Congress, since Cohen previously denied such knowledge. In other words, the story was not just false but potentially put his client in jeopardy.

For donors on Cohen’s GoFundMe site, the admissions constitute a type of bait-and-switch. After fueling excitement about Cohen’s impact as a witness against Trump (and driving hundreds of thousands of dollars in donations), Davis has destroyed the credibility of the man he claimed would “reset his life” and try to “tell the truth.”

One might well wonder at what point any of this is truly in the interests of Davis' client, Cohen. But apparently Cohen thinks this will somehow work out for him. Good luck with that.

If you're wondering why the MSM hasn't covered this, well, there has been some handwringing over Davis' unscrupulous ways. Politico actually carried a story about that handwringing: Lanny Davis burns reporters. Should they still give him a megaphone? Here's how it begins:

Lanny Davis, in his role as lawyer and spokesman for Michael Cohen, has copped to misleading journalists, admitted he made false statements on national television and generally caused headaches for reporters who’ve used him as a source. 

It’s the latest example of a perennial Washington question that seems to have become more pressing in the Donald Trump era: How should journalists handle sources who are in powerful news-maker positions, but who are also known to be dishonest?

Notice Politico's innuendo? Davis' insouciant dishonesty is somehow Trump's fault? But I think we know how that final question has been answered--Michael Cohen's "redemptive" pre-incarceration testimony tells us. Lanny, all is forgiven!

But I'll close with Penn's summation:

Cohen took his best shot — and maybe it will reduce his sentence. His testimony may have lit up cable TV, but it didn’t really show anything new beyond Cohen’s willingness to throw the kitchen sink at Trump. It did confirm that the Russia-Trump collusion investigation is dead and that congressional Democrats have no new witnesses on that score.

In the end, impeachment for personal behavior strengthened President Clinton politically with Americans and increased his majority in Congress. It’s proven to be a losing strategy for any party that goes down this road, especially when the other side of the TV split-screen is a historic summit to reduce a nuclear threat to the world. 

MORE UPDATES: Re Lanny Davis, this morning Jim Daws at American Thinker has some choice words. Excerpts, but read it all:

As ... Jim Jordan, pointed out in his opening, this was the Lanny Davis show from concept to planning and execution.  Davis is well known as the longtime fixer for the Clinton crime family.  ...  Does anyone doubt that Cohen's 30-minute opening, used to slander and denigrate Trump, was composed by Davis to inflict maximum political damage? 

Davis captured Cohen for the Resistance after he was indicted for tax and bank fraud.  Davis likely promised to use his Clinton connections with the highly partisan Southern District of New York to win Cohen a reduced sentence.  He would also have to implicate Trump, which explains why Cohen would plead guilty to a charge of campaign finance violation that isn't in fact a crime and never would have stood up in court.  

... 

... Andrew McCarthy, points out that Cohen might have been led to believe that his testimony at the hearing could further reduce his sentence.  But that's assuming he escapes prosecution for perjuring himself yet again before the committee, including claiming he never sought a job in the White House — something the opposite of which Cohen previously admitted on CNN.  Republicans have already made criminal referrals for this and other lies under oath.  

By putting him back before the committee — something no competent attorney would do — Davis exposed Cohen to additional charges.  ...  It was revealed that Cohen isn't actually paying for Davis to represent him, which makes perfect sense, because Davis isn't acting in Cohen's best interest.

Debra Saunders:

 Cohen was facing 65 years in prison as prosecutors dangled felony counts that included charges of tax evasion and lying to Congress. 

By cutting a plea deal, Cohen reduced his prison time to three years. 

Cohen admitted to the committee that he will try to get that sentence reduced further.

Will Bill Barr have something to say about that? Will Barr pursue the perjury referral from House Republicans? He should, IMO.