Federal Prosecutors 'Concluded' Trump 'Committed a Felony'

One of the details that immediately jumped off the pages of Southern District of New York (SDNY) prosecutors’ Friday sentencing memo for Michael Cohen has to do with “Individual-1,” also known as President Donald Trump.

Prosecutors were pretty open about who Individual-1 was from the start and how he came to “direct” Cohen to commit felonies:

On approximately June 16, 2015, Individual-1, for whom Cohen worked at the time, began an ultimately successful campaign for President of the United States. Cohen had no formal title with the campaign, but had a campaign email address, and, at various times advised the campaign, including on matters of interest to the press. Cohen also made media appearances as a surrogate and supporter of Individual-1. During the campaign, Cohen played a central role in two similar schemes to purchase the rights to stories – each from women who claimed to have had an affair with Individual-1 – so as to suppress the stories and thereby prevent them from influencing the election. With respect to both payments, Cohen acted with the intent to influence the 2016 presidential election. Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments.

Then came to key line: “In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1.”

We already knew that when Cohen entered a guilty plea in the SDNY he admitted that Individual-1 “directed” him to commit campaign finance violations by arranging hush payments to porn star Stormy Daniels and Playboy model Karen McDougal.

This is new. Federal prosecutors have said for the first time in a court filing that Cohen committed campaign finance crimes “in coordination with and at the direction of” President Trump. pic.twitter.com/mOYvdMqHS7 — Brad Heath (@bradheath) December 7, 2018

But now we’re seeing that in a court filing for the first time, which, as some legal observers have said with varying emphasis on the fact, means federal prosecutors have concluded that Trump directed someone to commit a crime, which could be a crime. Put another way, SDNY prosecutors believe the president directed and coordinated felonies.

Some have been “crystal clear” about their thoughts on this development.

Just to make it crystal clear, New York federal prosecutors concluded that the President of the United States committed a felony. https://t.co/ptDenENZ6d — Renato Mariotti (@renato_mariotti) December 7, 2018

“Just to make it crystal clear, New York federal prosecutors concluded that the President of the United States committed a felony,” said former federal prosecutor Renato Mariotti.

I think my reading here is correct. If so, it is the first time federal prosecutors have said they believe Donald Trump committed a felony. It is therefore huge news if this reading is right. @renato_mariotti @AshaRangappa_ do you agree? https://t.co/etkD8lKbyY — Neal Katyal (@neal_katyal) December 7, 2018

“I think my reading here is correct. If so, it is the first time federal prosecutors have said they believe Donald Trump committed a felony,” former acting Solicitor General Neal Katyal added.

One of the biggest open questions is not about Mueller, but SDNY. They've concluded the president committed a crime, and they have hard evidence to prove it. What do they do with that? They can't just drop it. — Matthew Miller (@matthewamiller) December 7, 2018

“One of the biggest open questions is not about Mueller, but SDNY. They’ve concluded the president committed a crime, and they have hard evidence to prove it. What do they do with that? They can’t just drop it,” said MSNBC Justice and Security Analyst Matthew Miller.

This is significant. The Justice Department is alleging in court that the president directed his onetime lawyer to commit two felonies. — Brad Heath (@bradheath) December 7, 2018

According to Mariotti, this means that prosecutors “concluded that Trump directed Cohen to commit the two campaign finance violations he pleaded guilty to.”

“Those violations were felonies, and someone who directs a subordinate or agent to commit a crime is also guilty of a crime,” he said, cautioning that this does not mean that Trump has been charged with a crime or that he will be.

4/ That does *not* mean that Trump has been charged with a crime, or necessarily that he will. But it's a very big deal because federal prosecutors are required to provide full and accurate information to the judge about Cohen's criminal activity. — Renato Mariotti (@renato_mariotti) December 7, 2018

🤦‍♂️ . . . ignorance of the law is a defense to criminal campaign finance charges. Just because Cohen broke that law doesn’t mean anyone else did. https://t.co/FHqCELw3ZE https://t.co/3OL3zAKdDJ — Andy Grewal (@AndyGrewal) December 7, 2018

What Eric said. (He's a lawyer.) I'd go so far as to say SDNY team is dancing around this point deliberately. It's another required element of the crime and they're not saying if they think they can prove it or not. Of course, POTUS unlikely to be charged anyway under DOJ policy https://t.co/1dgXUu686Z — Josh Gerstein (@joshgerstein) December 7, 2018

This point from @rickhasen is key. Campaign finance law is based on intent. And intent is not commutative. Cohen may have followed Trump's direction thinking that he was helping in the election. But Trump may have directed Cohen for personal reasons. Trump assumed he'd lose! pic.twitter.com/8VCW6IFYSZ — David Ziff (@djsziff) December 8, 2018

Now that I've actually read the SDNY memo, I find the suggestion that prosecutors were trying to send a message about Trump rather far-fetched. Twitter & cable news told me I'd find "We're coming for you!" if I read between the lines. That's not the case. — Andy Grewal (@AndyGrewal) December 8, 2018

Meanwhile, President Trump believes he has been totally cleared.

Totally clears the President. Thank you! — Donald J. Trump (@realDonaldTrump) December 7, 2018

White House counsel Kellyanne Conway‘s attorney husband George, a frequent and blunt critic of his wife’s boss, responded to the Trump tweet this way.

Except for that little part where the US Attorney’s Office says that you directed and coordinated with Cohen to commit two felonies. Other than that, totally scot-free. https://t.co/YXmgY9KmXi — George Conway (@gtconway3d) December 8, 2018

You can read the rest of the SDNY memo below. Special counsel Robert Mueller also filed a sentencing memo in the Cohen case.

Michael Cohen sentencing me… by on Scribd