In the sentencing recommendation for former Trump attorney Michael Cohen filed by federal prosecutors in the Southern District of New York today, the prosecutors suggest that “Individual-1” has clearly committed at least two felonies related to the case.
The U.S. attorney’s filing states the following.
“Individual-1, for whom Cohen worked at the time, began an ultimately successful campaign for President of the United States” and that “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. 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.”
Cohen had already pleaded guilty to committing campaign finance violations by using campaign funds to make hush money payments to Stormy Daniels and Karen McDougal, “at the direction of Individual-1.” It is the first time in a court filing that prosecutors have concluded that President Trump has committed a crime by directing someone else to commit a crime. In other words, SDNY prosecutors believe that President Trump directed and coordinated felonies, according to Law & Crime.
“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, who also said that federal prosecutors “concluded that Trump directed Cohen to commit the two campaign finance violations he pleaded guilty to.”
“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,” said former acting Solicitor General Neal Katyal.
Despite these conclusions, President Trump is unlikely to be prosecuted for these crimes if proven to be true. For one, Special Counsel Robert Mueller has pledged that he will adhere to Department of Justice standards and not prosecute a sitting president, and it is likely that other U.S. attorneys will follow suit in related cases. Additionally, according to the Yale Journal On Regulation, the Federal Election Campaign Act is different from normal statutes in that while the law typically does not allow ignorance of the law as a defense, the FECA only provides criminal consequences for those who “knowingly and willfully” violate its statues.
Thus, if President Trump did not know the campaign finance law, he didn’t “knowingly and willfully” break it. Federal prosecutors would then have the burden of proof that President Trump knew he was breaking the law in directing Cohen to make the payments.