My attention has been called to this article, which takes a hard look at Trump’s twitterings on the Cohen campaign finance plea, and endeavors to reverse engineer his legal strategy. The writer deduces that Trump plans to advance the following three arguments, and I quote:
- Trump didn’t direct Cohen to commit the violations, because Cohen was Trump’s lawyer and devised the payoff structure on his behalf.
- The payoffs weren’t campaign related — and if they were, the violations were mild enough to be civil violations, not criminal acts.
- Cohen’s criminal guilty plea to the campaign violations shouldn’t indicate that the acts were really criminal. Because Cohen was going to prison anyway, he threw in the campaign violation plea as a favor to prosecutors.
I have been asked to comment. I will assume, for the sake of the discussion, that the three propositions, as stated above, accurately reflect the positions Trump and his attorneys intend to take.
Defense One: No Mens Rea
Demonstrating criminal campaign finance violation requires, among other thing, showing that the defendant had criminal intent, which lawyers call mens rea, or guilty mind.
You cannot discover the presence or absence of mens rea scientifically, for example, by putting electrodes on the defendant’s head and reading electrical impulses. Rather criminal intent is a legal inference drawn from what the defendant did, what the defendant said, and from all the surrounding circumstances. If the relevant evidence is conflicting or ambiguous, this would be a question for the jury to determine, guided by the judge’s instructions on the law, and giving due consideration to arguments by counsel for the prosecution and for the defense.
At this point, the public knows some of the relevant evidence, but our knowledge is far from complete. We can all speculate about what a fuller picture will reveal.
If Your Grandmother Had Wheels, She Could Ride on the Railroad Tracks
In the meantime, lawyers for Trump seem to be proceeding as expected. Rather than focusing on what actually happened—which we don’t know—they invite us to consider abstract hypothetical possibilities that may bear some resemblance to what actually happened.
For example: suppose the facts show that Trump told Cohen, “Pay off my playmates, but be sure you do it in a lawful manner, and I’m relying on you to turn square corners.”
Or suppose Cohen said, “OK, boss, I have devised a way to hush the bimbos, and, trust me, it’s completely legal.”
Facts like that would be surprising, because Trump has never, ever prioritized obeying the law. But if, speaking hypothetically, the jury believed something like that happened, then, yes, Trump’s lawyers would have some good arguments for the jury.
But, as I heard a lawyer once argue, addressing the lack of significance of hypothetical possibilities, if your grandmother had wheels, she could ride on the railroad tracks.
Defense Two: The “Real” Reason Trump Wanted to Pay Off the Babes
Apparently, the argument is that he wanted to avoid embarrassment, not to influence the campaign. The argument is defective for two reasons.
First, the timing of the payments shows they were campaign related.
Second, the argument “proves too much,” as lawyers would put it. Ask yourself this question: What kinds of acts might you wish to cover up by illegal campaign contributions? Those would be embarrassing acts, n’est-ce pas? If hush money payments to avoid personal embarrassment may never be prosecuted as criminal campaign finance violations, then any and all hush money payments are immune from prosecution.
Defense Three: Cohen’s Guilty Plea Doesn’t Matter
Actually, that’s not a defense, it’s a truism.
Regardless of who else pled guilty or didn’t plead guilty, a prosecutor bringing a criminal charge against Trump would still have to prove his guilt beyond a reasonable doubt.