Thursday, February 28, 2019

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.


  1. I am now completely convinced that the Buzzfeed story from January that claimed Trump suborned Cohen's perjury before Congress was sourced directly from Cohen and Davis- it is why Buzzfeed so tenaciously defended the story despite Mueller himself telling everyone it was false in its entirety. It really is the only explanation, and you can see it confirmed in Cohen written pre-testimony statement where he explicitly denies the story, but then follows it up with innuendo. Buzzfeed was likely shown an earlier version of this statement where Cohen probably just stated that Trump told him to lie, or just made the innuendo without the explicit statement I noted above.

    I think we can now figure out what happened in January. The question to ask is this- how was it that Cohen got on the hook for perjury in the first place? How did the Mueller team know it was perjury? I assert they knew it because the White House counsel and Trump personal legal team had already provided the documentation that proved it beyond all doubt, probably including all the documentation describing the preparation of Cohen's original testimony. That documentation proved both that Cohen lied and that Trump hadn't encouraged him to do so- that Cohen made that decision alone. It is why Mueller had to come out publicly to torpedo the story- it was a case of having too much evidence at hand.

    1. Yancey, you may be on to something. It--your narrative--hangs together. Buzzfeed's confident insistence that their story was well sourced, followed by the delayed disavowal by Mueller, always pointed toward some behind the scenes pushback from Trump's team.

  2. A new twist to this story. It is now alleged that Cohen was coerced into renouncing Trump by Mueller threatening to prosecute his wife and seek a very long prison sentence (up to 30 years). If true, this is further evidence of the Gestapo tactics being unleashed by the DOJ/FBI in it's pursuit of expelling Trump by any means necessary.

    I suspect that people within the DC bubble continue to believe that this heinous conduct is being largely ignored by MainStreet USA because the media is running interference by soft-pedaling these stories.

    Barr would be wise to assume otherwise. The reputation of DOJ/FBI is going from bad to catastrophic.

    1. I think the aspect that needs to be closely examined in this is the handoff to SDNY--the old stomping grounds of Mueller and Weissmann and others on the team. Mueller needed a jurisdiction that wouldn't examine the plea deal too closely and, fortunately, SDNY was available.

    2. "A new twist to this story. It is now alleged ..." March 1 @ 11:18am

      I do need to point out that the new twist was actually part of my original blog, which was published yesterday afternoon.

  3. This is a superb article. I feel that I have a much better understanding of this situation.


    I want to address here just one part of the article -- the dossier's allegation that Michael Cohen visited Prague in the later summer of 2016 as part of conspiracy involving Donald Trump and Russian Intelligence. I have addressed that allegation already in previous comments on your blog.

    It's useful to think about a couple of questions.

    1) Why was the Fusion GPS interested in Michael Cohen in mid-2016?

    2) When Fusion GPS determined (albeit mistakenly) that Cohen visited Prague, then why was that visit linked to the Trump-Russia conspiracy?

    Trump had hundreds (indeed thousands) of associates. What made Cohen so especially important in an investigation of Trump's suspected collusion with Russia? Why study Cohen in particular?

    If Cohen indeed did visit Prague, then why think that the visit was related to Russian Intelligence?

    Furthermore, at some point, these relationships were perceived not only by Fusion GPS, but also by the US Intelligence Community.


    In these circumstances, the role of Carter Page seems to me to be a key to understanding the reasoning of Fusion GPS and of the US Intelligence Community.

    In 2015 (fifteen) Page had purported himself to be involved in a project to build a casino in Russia. He purported so to a Russian Intelligence officer who was working under cover as an official of a Russian bank branch located in the USA.

    Page has no experience building casinos anywhere. Why would Russian Intelligence believe Page's claims that he could facilitate the construction and development of a casino in Russia?

    It seems to me that Page was purporting to work for Donald Trump -- perhaps the only US person who plausibly could construct and develop a casino in Russia.

    In fact, Trump indeed was negotiating the development of a hotel in Russia. In those negotiations, he used Cohen as a representative.

    Russian Intelligence and US Intelligence, both, perhaps had received from Page some important, publicly unknown, information about Trump's negotiations to build a hotel or casino in Russia and about Trump's reliance on Cohen in those negotiations.

    That is why Cohen's supposed travels toward Russia were significant and ominous for Fusion GPS and then for US Intelligence. Their idea seems to have been that the hotel/casino project were, at least in part, a cover for collusion between Trump and Russian Intelligence.

    1. Two caveats you might want to work into your theory, Mike.

      1. In 2015 when Page was talking to those Russian officials, he was doing so under the direction of the FBI.

      2. My understanding is that Cohen has never been in the inner circle of any Trump project negotiations. If he had been, he wouldn't have ended up in financial straits. He was more or less freelancing in hopes of breaking into that aspect.

    2. I think I have made the comment here before- that Cohen was likely "given" the Russian negotiations because the deal was already dead and Trump didn't have anything else for him to do during the campaign as it heated up. It is possible that the Trump family's e-mails show just that- that Cohen's work wasn't taken seriously by anyone other than Cohen. It is why the idea that Trump suborned perjury in the matter never had any footing for Mueller- Mueller had all those e-mails.

      The more I see of Cohen, the sorrier I feel for him- he is so obviously out of his depth that I can easily imagine that the people he worked with thought he was basically a joke, including all of his new friends he has met via Lanny Davis.

    3. For my part, that makes sense.

  4. Yes, I know that Page was under the direction of the FBI when, in 2015, he was purporting to a Russian Intelligence officer that he plausibly could help develop a casino in Russia.

    The FBI knew all about Page purporting so to a Russian Intelligence officer. Furthermore, it's likely that the FBI helped Page develop that story.

    In this situation, some FBI official(s) arranged for an FBI contractor(s) (i.e. Fusion GPS) to search the NSA's database. This arrangement apparently began no later than 2015, and such searches were being conducted as Trump began his election campaign in August 2015.


    I wonder whether the FBI official(s) who arranged for the contractors's searches did so in order to arrange for a plausible deniability that the FBI itself was collecting information about Trump (and other Republican candidates). The arrangement made the contract(s) the fall guy(s) if the improper searches of the NSA database were discovered.


    According to my speculation, the FBI knew that Carter Page actually was involved personally in Trump's negotiations to build a casino in Moscow -- or else that Page had purported to the Russian Intelligence officer that he was involved.

    Furthermore, the FBI had learned that Michael Cohen was involved in those negotiations.

    In these circumstances, the FBI official(s) who arranged for the contractor(s) to search the NSA database would reasonably suggest that Cohen was likely to be involved in Trump's negotiations to build a hotel/casino in Russia.


    Why was Cohen involved in Trump's negotiations to build a hotel/casino in Russia? That is a mystery.

    I am sure that Cohen has been asked about that. This information is being kept secret from the public.


    By the way, I wonder whether Trump's negotiations to build a hotel/casino in Russia is somehow related to the story about a couple of prostitutes being filmed secretly while they were urinating on a hotel bed.

    1. But if "Carter Page actually was involved personally in Trump's negotiations to build a casino in Moscow" why hasn't that come up, especially in the FISA stories? If "the hotel/casino project were, at least in part, a cover for collusion between Trump and Russian Intelligence." That would seem to be a perfect defense for the FBI/DoJ to the accusations that they have abused the FISA law.

    2. Mike, see my comment above to Mr. Wauck in regards to why Cohen.

      I have never quite been able to let go the notion that Page not only worked for the FBI in 2013-2015, but continued to do so right through to the Fall of 2016 and maybe even today. One of the striking things about Page is that Mueller never tried to string him up on process charges of any kind- even rinky-dink ones. It is difficult to explain this difference between Page, and let's say, George Papadopoulos, but if Page were working for the FBI during all of 2016, then, of course, you can't indict him or even threaten him with it because he has information you need make sure never sees the light of day.

  5. If "the hotel/casino project were, at least in part, a cover for collusion between Trump and Russian Intelligence."

    I'm not saying that the project was a cover for such collusion.

    Rather I am saying that Fusion GPS and the US Intelligence Community thought that the project was a cover for such collusion.

    1. My quote was a direct quote from your earlier comment, Mike.

      My problem with this scenario remains: if this is what they thought, then this should have surfaced explicitly sometime during the last 3 or so years--just because it's perfect justification for the actions of Fusion and the UC. The easiest explanation for why it hasn't surfaced is that Page wasn't actually involved personally.

    2. Mike, I don't think they ever believed it- I think, from the beginning, they were trying to create the all the details that might support such a narrative, and doing so knowingly.

  6. The verb were is in the subjunctive tense.


    In regard to my scenario, we will see. I am just speculating.

  7. I want to raise a new issue, even though it is not addressed in this article.

    I keep reading that if a police investigation does not result in a charge against a person, then that particular part of the investigation should not be reported to the public.

    For example, if Robert Mueller does not charge President Trump, then the details of the investigation of Trump should not be released to the public.

    However, I like to watch true-crime shows on television, and those shows constantly depict the investigations of suspects who ultimately were cleared. I have in mind shows that are on the "Investigation Discovery" cable-television channel -- show like "Homicide Detective".

    Those shows tell how various people were suspected, investigated and ultimately cleared in criminal cases. These dead-end investigations are depicted in detail.

    So, what are the rules about revealing dead-end investigations?

    1. Mike, this is a very complicated topic. For example, regarding Grand Jury secrecy rules that may apply in many investigations, those rules differ in Federal and State jurisdictions. Generally, I'd refer you to Grand juries for that, which has sections re secrecy. That would certainly be a factor in the Russia Hoax.

      In more general terms, the rules, such as they are, mostly have to do with fairness to anyone who is accused as well as protecting the privacy of subjects as well as witnesses--for various reasons. For example, embarrassing information of a non-criminal nature may have been discovered.

      Naturally this applies to investigations that have gone public. The Jussie Smollett case is one example. The Russia Hoax is another.

      In the Russia Hoax, if no evidence of criminal conduct on Trump's part is discovered, ordinary fairness would seem to dictate that that should be forthrightly stated--even if distasteful non-criminal conduct was uncovered. That's fairness to Trump, but also serves the public interest. But, for reasons of fairness and privacy, it would also probably be best to err on the side of non-disclosure as to details.

      However, in the Trump case political considerations are also at play. For that I refer you to Barr's 19 page memo. Barr's concern is more or less as follows.

      Team Mueller has really pushed the envelope in terms of theories of prosecution. Often such theories aren't challenged because a defendant can't afford the humongous legal expenses, so the prosecutor can get away with, basically, smearing a person and coercing a guilty plea. Courts have little control over that.

      Barr states that he sees Mueller's investigation pursuing a theory of obstruction that has been rejected by the SCOTUS as well as in DoJ policy statements. Barr's concern, if I may speculate, is that Mueller might, for political motives, issue a report in which he says something like: We don't feel able to prosecute, but we found evidence that might lead some to believe there was obstruction. Barr's view is that that would be both unfair as well as grossly irresponsible.

      Of course, Barr is where that buck now stops. I hope that's helpful.

    2. I should add ...

      Barr's memo was written before Barr was a candidate for AG (probably). Or at least before he was nominated. It was addressed to Rosenstein who, because of Sessions' recusal, was in charge of the Mueller "probe". Many legal scholars whom I respect, FWIW, believe that Rosenstein was supervising Mueller improperly because Rosenstein had his own serious conflicts. For example, if, as I and most of the rest of the world believe, Mueller has been investigating alleged "obstruction" in Trump's firing of Comey, then Rosenstein is a central witness to that part of the investigation and should definitely not be supervising it. The constant leaks are also a concern--another area in which prosecutors can unjustly exert enormous pressure. In any event, Barr is adamant that no investigation at all is justified when what's at issue is the President's exercise of his constitutional powers--here, to hire and fire people. He wrote 19 pages about that, so I can't summarize it all here.

    3. Mike, two more things to think about ...

      1. The Hillary email case. Everyone I know of agrees that what Comey did was grossly improper. The fact that he discussed details of the case instead of giving a straightforward explanation for declining is a giveaway that politics was the name of that game. The fact that his counsel James Baker disagreed to the last minute is also a clue. There was so much wrong in that it's like a textbook case. But that's what happens when non-legal considerations enter.

      2. Suppose that Mueller's report is released in heavily redacted form "in the interests of fairness and to protect privacy." Who would that satisfy? No one. That's why the Special Counsel regs allow the AG to do his own summary report. Barr is on record as wanting to release "as much as possible" (words to that effect), but that's in an ideal world. If Mueller doesn't have a succinct summary, Barr will probably have to do his own.