03 May 2018



So Rudy Giuliani, the frustrated seeker of a post in the Trump cabinet, is now out in front as the president’s latest spear catcher. The man will do anything for a job that earns him a spot in the news. Anything. 

I don't know if he was the genius who thought up the latest plan for dealing with the payment to Stormy Daniels, or he was just the guy who volunteered to get out in front and present somebody else's dumb idea, but Giuliani, with Trump's blessing, has just announced that, "Yup, Trump knew of Michael Cohen's payment to Stormy Daniels, and reimbursed him for the $130,000, by masking the Cohen payments as legal retainers, for no legal work."

This was a brilliant legal maneuver. Just ask Rudy. You can find him on any TV channel, at any time of day or night.

Are there problems with admitting these facts? Well, of course this confession establishes that both Cohen and Trump lied to the public by asserting the opposite was true.  But their earlier denials were not under oath, so that's not perjury, though there is, conceivably, some minor risk their public lies could be evidence of an intent to mislead the federal prosecutors, and evidence of an intent to obstruct justice.

Basically, Giuliani had to figure that branding Trump as a liar is no big deal. The Washington Post has counted 3,000 whoppers Trump has told since his inauguration. And the rate is increasing. He is up to 9 per week now!  What's one more on the pile?

Cohen? Well, this is Trump's play, and he may not even have consulted with Cohen about this. But really, NOBODY believed Cohen when he said he did this on his own and didn't tell Trump and didn't  get repaid. So confessing now that Cohen is a liar is just telling us what we already knew.

Now the question is, why would Trump tell this truth at this time?

Here's my take:

Cohen is exposed for making an in-kind cash contribution to the Trump campaign, which is a federal crime. If he got nothing back from Trump, his only defense was, "No, this payment to hush Stormy six days before the election had nothing to do with the election. It was just a favor for a friend." Yeah, right, try and sell that to a New York jury.

But once the feds seized Cohen's records, the conspirators knew the feds would find the truth among his documents, so they tried to walk between the raindrops. They will say:

1. Trump did not know of the payment when it was made. Cohen did that on his own and so Trump is in the clear. 

2.  But is it a campaign contribution from Cohen? No, it is not a campaign contribution because Cohen got the money back, so he contributed nothing, even though Trump did not know about it in the first place. Cohen's earlier press denial was just little white lie, to protect a client. No biggie.

3. And Trump's subsequent repayment is just something you do when you learn a friend helped you out earlier. Should the president have reported his reimbursement as his own campaign contribution? Yeah, maybe, but he didn't think of that at the time. If it's an offense, it's a parking ticket offense. Besides, he is reporting it now.

Brilliant, huh?  Yeah, maybe the Fox News morning talk show will swallow that, but it is all bullshit, bullshit, bullshit. 

The announcement presents new, serious risks for Trump and Cohen. Look at what the government can now prove, out of the mouths of conspirators: 

1. We already knew Cohen violated campaign laws by making an "in-kind" contribution 6 days before the election. Now we know Trump violated the law by not reporting it when he learned of it, and/or he violated the law by not reporting his own contribution to the campaign via the reimbursement payments to Cohen.

2. The effort to get both Cohen and Trump off the hook is beyond lame. In fact, it is an admission of felonies way more serious than campaign contribution violations.

3. By hiding the nature of the Cohen loan, and by employing a false rationale for the hidden method of the reimbursement payments from Trump to Cohen, they both may be guilty of money laundering, conspiring to commit bank fraud (on Cohen's bank loan), and other federal crimes.

4. Not only that, the new Giuliani & Co. confessions have just blown holes in Trump's attorney-client privilege umbrella. The government will certainly be able to establish probable cause to believe the Cohen-pays-and-Trump-reimburses-through-disguised-retainer-payments scheme had as its purpose the furtherance and cover up of the campaign law and bank fraud crimes. That kind of activity is right down the center of the crime-fraud exception to the attorney-client privilege.

Way to go, Rudy!

Two more observations before I go.

First, Cohen's Fifth Amendment privilege may also run into problems with respect to the Stormy documents. Cohen says the real party in interest to the Stormy contract was his LLC, and he was just an agent for that limited liability corporation. But the Supreme Court has held that corporations have no Fifth Amendment privileges. Is Cohen's LLC an exception to that rule? The cases are all over the lot on that question. Maybe one of Trump's revolving cast of lawyers can spend a week looking at that question. Lawyers? See below.

Finally, in yesterday's blog, I mentioned the high rate of lawyer departures from the Trump team, and separately,  the continuing spate of timing coincidences. In that regard, I mentioned the coincidence of the Tillerson firing six hours after publicly disagreeing with Trump re Putin's poisoning of the spy in the U.K. And I pointed out coincidence of dates in the recent statement of Ms. Velenskaya, who met with Trump's campaign triumvirate. She not only volunteered she became an informant for the Russian intelligence service well before that meeting, but the date of the beginning of her secret service was the same year Trump visited Moscow!

Now one more timing coincidence: Ty Cobb, Trump's relatively long-lasting lawyer, yesterday was interviewed for a podcast. In the course of that conversation, Cobb said that the leak of the "49 questions" did not come from Mueller. That contradicted Trump, who was frantically tweeting that the leak did come from Mueller and that was "disgraceful." Two hours after the podcast was recorded, Cobb called up the interviewer and said "Oh, I forgot to tell you, I just realized I am 67 years old and am 'retiring' as the president's lawyer."


(Duh, of course the 49  questions didn't come from Mueller. They were written by Trump's own lawyer, Jay Sekulow!  My guess is the Mueller team saw them for the first time when reading the New York Times!

But that's the risk to any member of the Trump team who utters even an obvious truth! Integrity and reality do not exist in the Trump universe. Any public display of those values is punishable behavior.)

Things are getting worser and worser.