Michael Cohen’s Sentencing Memorandum Is More Bad News For Trump.

On November 30th attorneys for former Trump personal attorney and “fixer” Michael Cohen filed a Sentencing Memorandum with the court where he has pled guilty to tax fraud and lying to Congress. The memo is essentially a brief by Cohen’s attorneys to the judge pleading for leniency for their client.

The facts presented in the memo are almost certainly true, or at least accepted by Mueller’s Special Prosecutor Office as such. If anything, the facts presented are likely conservative to avoid overreaching. Mueller’s office will be filing their own Sentencing Memorandum where they would pounce on any misstatements presented by Cohen’s defense. When pleading for leniency to the judge, it would be unwise to be caught using lies.

The Players

As you read, and I talk, about the specific statements in the Sentencing Memorandum, it’s helpful to have a cheat sheet of some of the euphemisms used to describe the players.

“Client-1” = Donald Trump, President of the United States.

Woman-1 = Karen McDougal, former playmate who alleges a nine month affair with Trump. Her story was silenced until after the election by a “catch and kill” agreement with AMI (the parent company for the National Enquirer). This payment by AMI violated campaign finance law as an improper contribution by a corporation to the Trump Campaign.

Woman-2 = Stormy Daniels, a porn star who alleges a one night affair with Trump. Her story was silenced until after the election by a “hush agreement” with Cohen paying her. Cohen’s payment violated campaign financing law as it was in excess of maximum individual contribution limit to the campaign.

Corporation-1 = AMI, the parent company of the National Enquirer, which made the illegal “catch and kill” payment to Karen McDougal.

Whenever I quote from the Sentencing Memorandum I will substitute these euphemisms with the actual names. When you read the Sentencing Memorandum you will see there is a whole lot of talking about “Client-1,” aka President Trump.

The Preliminary Statement (pp. 1–5).

Cohen’s attorneys emphasize his level of cooperation, and his intent to cooperate more.

Beginning before the entry of his plea on August 21, 2018, and continuing thereafter through late November, Michael participated in seven voluntary interview meetings with the Special Counsel’s Office of the Department of Justice (“SCO”). He intends to continue to make
himself available to the SCO as and when needed for additional questioning . . .

Cohen’s cooperation extends to the New York Attorney General’s Office and the New York State Department of Taxation to both of which he has provided information and documents.

Michael has similarly met voluntarily with representatives of the New York State Office of the Attorney General (“NYAG”) concerning a state court action in which the NYAG has sued the Donald J. Trump Foundation and certain individual defendants, including Donald J. Trump. He also provided the NYAG with documents concerning a separate open inquiry. As above, Michael intends to make himself available to the NYAG to provide any additional cooperation it may
request in these matters. Michael, following his plea, additionally waived subpoena and met on an expedited basis with the New York State Department of Taxation and Finance (“DTF”), and has cooperated
personally and through counsel and tax professionals with requests for information from DTF.

For the record, the “certain individual defendants” referred to in the NYAG lawsuit against the Trump Foundation include Donald Trump Junior, Ivanka Trump and Eric Trump. Among other things, that lawsuit accuses the defendants of misusing Trump Foundation funds to benefit Trump’s Campaign, to include falsely representing donations to assist veterans.

Cohen’s sentencing memorandum also presents his cooperation as ruining his chances for a pardon that Presidential statements suggested were possible. Cohen’s attorneys also argue he faced intimidation from the most powerful man in the country and his legion of followers.

For what it says about Michael’s fortitude and fundamental character, the significance of his cooperation with the SCO falls outside of the ordinary framework in which courts routinely assess
cooperation in criminal cases. It states the obvious to observe that this matter is unique. Michael is cooperating in a setting in which the legitimacy of the SCO’s investigation – and the rationale for
its very existence – is regularly questioned publicly and stridently by the President of the United States . . . In the context of this raw, full-bore attack by the most powerful person in the United States, Michael, formerly a confidante and adviser to Mr. Trump, resolved to cooperate, and voluntarily took the first steps toward doing so even before he was charged in this District . . . He took these steps, moreover, despite regular public reports referring to the President’s consideration of pardons and pre-pardons in the SCO’s investigation . . . he acted knowing that the result would be personal attacks on him by the President, a bevy of advisers
and public relations specialists, and political supporters of the President . . . as well as threats to him.

Trump’s Personal Involvement In The Campaign Finance Violations.

Beginning at the bottom of page 18 Cohen’s attorneys present their case for leniency in regards to Cohen’s the campaign finance violations Cohen pled guilty to. One of the primary arguments for such leniency is that Cohen committed these felonies at the behest and direction of the current President of the United States.

In regards to Karen McDougal, the suggestion from Cohen’s attorneys is that Trump was actually more involved in the illegal campaign contribution than Cohen was.

Michael himself did not make the payment to Karen McDougal called for by the agreement reached between AMI and Karen McDougal, but participated in planning discussions with Trump and the Chairman and CEO of AMI relating to the payment made by AMI, including obtaining the commitment of Trump to repay AMI.

For the illegal payment to Stormy Daniels, Cohen makes clear Trump was fully involved and that he acted only on Trump’s instructions.

Michael made a payment to the lawyer for Stormy Daniels in coordination with and at the direction of Donald Trump, and others within the Company . . . Michael kept his client [Trump] contemporaneously informed and acted on his client’s instructions.

The facts in the sentencing memorandum treat Trump as an un-indicted co-conspirator to the campaign financing fraud Cohen pled guilty to. As explained above, this is a characterization of the facts almost certainly accepted by Mueller’s team.

A Possible Trump Administration Role In Cohen’s Lying To Congress.

Cohen’s attorneys seek mitigation of his sentence because he was acting in over-zealous support for the President of the United States when he lied to Congress.

Michael’s false statements to Congress likewise sprung regrettably from Michael’s effort, as a loyal ally and then-champion of President Trump, to support and advance President Trump's political messaging.

But it goes beyond that. Cohen’s attorneys suggest some degree of coordination with the Trump Administration regarding his false testimony to Congress.

in the weeks during which his then counsel prepared his written response to the Congressional Committees, Michael remained in close
and regular contact with White House-based staff and legal counsel to President Trump . . . As such, he was
(a) fully aware of Trump's repeated disavowals of commercial and political ties between himself and Russia, as well as the strongly voiced mantra of President Trump that investigations of such ties were politically motivated and without evidentiary support, and 
(b) specifically knew, consistent with Trump's aim to dismiss and minimize the merit of the SCO investigation, that President Trump and his public spokespersons were seeking to portray contact with Russian representatives in any form by Trump, the Campaign or the Trump Organization as having effectively terminated before the Iowa caucuses of February 1, 2016.

The Issue Of Proof

There is actually much to digest in the Sentencing Memorandum prepared by Cohen’s attorneys. Certainly, the memorandum has to be understood in the context of it being an effort by Cohen’s paid advocates to persuade a judge to be lenient when sentencing Cohen. However, the facts asserted in it are likely also accepted as true by Team Mueller.

The evidence Team Mueller would require to accept such facts is likely much more than Cohen’s word against Trump. Team Mueller likely has additional evidence in the form of things like contemporaneous emails and other documents corroborating these facts. Mueller may even have recordings such as the one Cohen made of himself and Trump coordinating the payment to Karen McDougal.

What All Is There?

As I said, there is a lot to digest. Here’s a summary.

  • For all the damage to Trump Cohen has already done, he is still cooperating. More of this is sure to come.
  • Cohen’s cooperation includes investigations of Trump, and his children, by the State of New York, which Trump cannot pardon.
  • Trump was personally a co-conspirator in criminal campaign finance violations.
  • Members of the Trump Administration may have coordinated with Cohen his false testimony to Congress about his conversations with Russians on behalf of Trump. If so, they would guilty of conspiracy for that offense, and possibly witness tampering. While the Sentencing Memorandum does not name those individuals, or get into the specific nature of those conversations, you can bet those specifics have been part of Cohen’s long talks with Team Mueller.

Stay tuned. More is coming, possibly much more.