They Said This Day Would Never Come ...
... Donald Trump has his day of reckoning. How strong is the case?
I’m Michael A. Cohen, and this is Truth and Consequences: A no-holds-barred look at the absurdities, hypocrisies, and surreality of American politics. If you were sent this email or are a free subscriber and would like to become a paid subscriber, you can sign up here.
This is an iconic photo.
You can read the indictment here. This is the key graf:
From August 2015 to December 2017, the Defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.
Trump is facing 34 counts of falsifying business records. The case revolves around the notion that Trump engaged in a conspiracy to cover up news stories that he feared would undermine his chances of winning the 2016 election. This isn’t just about Stormy Daniels. Also mentioned in the indictment is Trump’s payoff to Karen McDougal, a former Playboy playmate with whom Trump had an affair/fling, and a Trump Tower doorman who alleged that Trump had fathered a child out of wedlock. Working with Michael Cohen (the other one) and David Pecker, the editor of the National Enquirer, Trump orchestrated a catch-and-kill strategy. The Enquirer would pay for the rights to the stories, and via Cohen, Trump arranged reimbursements. Then he falsified business records to keep the payments secret.
This also jumped out to me regarding the Daniels payoff.
The Defendant directed Lawyer A to delay making a payment to Woman 2 as long as possible. He instructed Lawyer A that if they could delay the payment until after the election, they could avoid paying altogether, because at that point it would not matter if the story became public. As reflected in emails and text messages between and among Lawyer A, Lawyer B, and the AMI Editor-in-Chief, Lawyer A attempted to delay making payment as long as possible. Ultimately, with pressure mounting and the election approaching, the Defendant agreed to the payoff and directed Lawyer A to proceed.
I’ll be curious to see what evidence the DA has to support this claim, but if he does, it backs up the notion that Trump paid off Daniels not to keep the affair from his wife but because he feared that it would hurt his chances in the 2016 election. That appears to be the nub of the issue for the Manhattan DA — that Trump falsified business records regarding the reimbursement to Michael Cohen (the other one) but that he did so to cover up his initial intent: to “influence the 2016 presidential election.” The latter claim allows Bragg to charge Trump with a felony. Ordinarily, falsifying business records is a misdemeanor, but if it’s done to cover up another crime, it becomes a felony.
In general, however, what I found most striking about this indictment is that it’s relatively straightforward and backed up by strong documentary evidence. Bragg is not relying on the other Michael Cohen to make his case. He clearly has statements from the National Enquirer’s former publisher David Pecker and Trump’s former CFO, Alan Weisselberg. In addition, there are text messages, emails, and audio recordings. So if the crux of the case is that Trump created false business records, I’m not entirely sure how Trump’s lawyers will defend him on that front.
I assume their approach will be to argue that the underlying crime — that Bragg is piggybacking off the claim that Trump tried to influence the 2016 election to turn what would usually be a misdemeanor into a felony. If Trump’s lawyers can successfully make that argument, Trump would be facing 34 misdemeanor charges of falsifying business records — which would end any real chance of him going to jail on these charges. If it remains a felony charge … we’ll see.
This is not a weak case. As crazy as it is to write these words, there is not an unreasonable chance that Donald Trump will go to prison over this.
The First Domino Has Fallen. What Comes Next?
Speaking of Trump’s legal culpability, I wrote about the federal investigations of Trump and offered a defense of Merrick Garland:
To listen to critics of Garland, who have pilloried him for more than two years, he has not been aggressive enough in going after Trump. With the former president now indicted in New York, and state and federal investigations of Trump underway in Atlanta and Washington, many of Garland’s detractors want to know: where are the indictments of the former president?
… Garland’s critics are understandably outraged at Trump’s consistent ability to break the law without consequence. But prosecuting a former president is a fraught exercise. Prosecuting one who is likely to be the 2024 Republican presidential nominee and face off against the current president (who is also Garland’s boss) is incredibly fraught, no matter how justified the indictment.
So all the more reason for Garland to dot every “i” and cross every “t” before going down that road. The last thing that Garland or the country can afford is for a presidential prosecution to even have the appearance of a political investigation — even if that is precisely how Trump and his lackeys in the GOP will portray it. Indeed, calls to prosecute Trump without knowing all the evidence against him, the applicability to criminal statutes and the likelihood of conviction have a strong odor of demands for a political prosecution — or at the very least, one not firmly grounded in the law.
If Garland demurs and fails to indict Trump, then the attorney general’s critics are welcome to bring out the long knives and hold him accountable. I may sharpen my pitchfork and join them. But until then, they should perhaps put aside their desire for a Trump reckoning and instead make sure Garland gets it right.
One of the points I make in the piece is that by the standards of other complex federal investigations, two years is not that long for an investigation like this to remain ongoing. “Getting documents from and litigating reluctant witnesses takes time. So too, does overcoming privilege challenges. And to get to Trump and other high-ranking officials, ‘you have to work your way up the chain.’”
In short, these things take time, so cut Garland some slack.
What’s Going On
Tennessee isn’t really a democracy anymore.
This is a strong piece by Greg Sargent on Lesley Stahl’s profile of Marjorie Taylor Greene and her failure to correct Greene’s anti-trans rhetoric.
I also talked to my friend Pete Dominick about the interview.
Musical Interlude
The very notion that Trump would hide sex with other women out of concern for Melania's feelings is not only laughable but also impossible given his psychopathology. So of course he did it to win the presidency. It should be easy enough to prove, no? But how about those new lawyers of his? Real thugs!
I have to disagree on both issues:
1) The information in the indictment/statement of facts was reported years ago. Both Pecker and Weisselberg were given limited immunity in the Cohen case. Certainly the former, if not the latter, will testify in the Manhattan case. It's a strong case, but not one that's likely to result in a prison sentence.
2) Garland dropped the ball...he could have saved the country untold grief by doing what literally anyone else would have done: bring a case based on the Mueller obstruction cases. Instead, he literally rubber-stamped every decision made by Barr (with zero explanation to the country), and continues to provide defense for Trump in one of the two EJean Carroll cases.
Further, Garland dragged his feet on both the documents case and the 1/6 cases, then dumped a hot mess into Jack Smith's lap. Smith has had to work 24/7 to compensate for Garland's appalling malpractice. He's had to litigate a gauntlet of privilege arguments, issue broad subpoenas for a variety of foundational information that Garland never bothered to obtain, depose a litany of witnesses, follow the money trail (which neither Mueller nor Garland had the guts to do).
I could write a book about Garland's abysmal tenure. The only thing he did right was to appoint Smith.
There may or may not be an indictment. I have very little faith in Garland's ability to take the heat.
In the meantime, the GOP is dismantling democracy state by state. They were emboldened to push the Big Lie by Garland's timidity.