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Defying the Odds

Defying the Odds
New book about the 2016 election.

Saturday, December 8, 2018

Almost As If SDNY Were Talking About Trump

In  Defying the Oddswe discuss  Trump's record of scandal.  In a plea deal, Michael Cohen implicated Trump in criminal activity.

Document: U.S. Attorney's Office for the Southern District of New York and Special Counsel's Office File Michael Cohen Sentencing Memo

The document suggests that  Trump committed felonies.
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. (PSR ¶ 51). 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. (PSR ¶¶ 41, 45). As a result of Cohen’s actions, neither
woman spoke to the press prior to the election. (PSR ¶ 51).
In October, the New York Times documented Trump's long history of cheating on his taxes.
The need for the sentence to promote respect for the law and to afford adequate deterrence further supports imposition of a significant sentence of imprisonment. Congress provided for strong criminal sanctions as a general deterrent to tax evasion, false statements to financial institutions, and campaign finance violations. Given the magnitude and brazenness of the conduct in this case, the interests of deterrence are best served by the imposition of a substantial term of imprisonment.

Cohen’s years-long pattern of deception, and his attempts to minimize certain of that  conduct even now, make it evident that a lengthy custodial sentence is necessary to  specifically deter him from further fraudulent conduct, whether out of greed or for power, in the future. Certainly, Cohen has no prior convictions, and is well-educated and professionally successful. Generally, such characteristics suggest that a defendant is unlikely to re-offend in the future. But where, as here, the nature, multitude, and temporal span of criminal behavior betray a man whose outlook on life was often to cheat – an outlook that succeeded for some time – his professional history and lack of prior convictions are not a significant mitigating factor.

For much the same reasons, the time-served sentence that Cohen seeks would send precisely the wrong message to the public. General deterrence is a significant factor here. Campaign finance crimes, because they are committed in secret and hidden from the victims, are difficult to identify and prosecute. Nonetheless, they have tremendous social cost, described above, as they erode faith in elections and perpetuate political corruption. Effective deterrence of such offenses requires incarceratory sentences that signal to other individuals who may contemplate conduct similar to Cohen’s that violations of campaign finance laws will not be tolerated. Particularly in light of the public interest in this case, the Court’s sentence may indeed have a cognizable impact on that problem by deterring future candidates, and their “fixers,” all of whom are sure to be aware of the Court’s sentence here, from violating campaign finance laws.

Additionally, a significant sentence of imprisonment would also generally deter tax evasion and other financial crimes by sending the important message that even powerful individuals cannot cheat on their taxes and lie to financial institutions with impunity, because they will be subject to serious federal penalties. This is particularly important in the context of a tax evasion prosecution. Hundreds of billions of dollars are lost annually because people like Cohen – who otherwise take full advantage of all that taxes bring, such as schools, paved roads, transit systems, and Government buildings – shirk their responsibilities as American taxpayers.