Crime

Trump Tweets About Cohen Payment Are Facially Unbelievable, Incoherent, And Unethical

The fact that Trump also provides no factual evidence to support his claims is just the cherry on top.

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Donald Trump (Photo by Richard Ellis/Getty Images)

So, it doesn’t appear that Rudolph Giuliani “went rogue” last night on Sean Hanntiy. His rambling, shocking admissions that Trump actually did reimburse Michael Cohen for Cohen’s payments to Stormy Daniels appear to be part of some coordinated strategy. At least a strategy hatched up by President Donald Trump, Giuliani, and whatever Greek god of sophistry they pray to.

Trump backed up Giuliani in a series of tweets this morning. The entire Trump/Giuliani explanation for the Cohen payment is ridiculous. It’s incredible. It’s stupid. Anybody who has been a lawyer, anybody who has been to law school, anybody who as ever HIRED A LAWYER knows that the Trump story doesn’t pass the smell test.

But, in this era of fake news and false equivalency reporting, having nearly the entire legal industry call “BULLS**T” is depressingly insufficient to explain the depth of cynicism and just plain wrongness in what Trump and Giuliani are selling.

So let’s break down this latest eruption of Trump tweets and try to show how none of this digital feces should stick.

Trump put up three tweets this morning, after the Giuliani interview.

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Let’s do this:

  • “Mr. Cohen, an attorney, received a monthly retainer, not from the campaign and having nothing to do with the campaign…” It would be entirely appropriate for an attorney to receive a monthly retainer from a political campaign. Campaigns have lots of lawyers. They also hire outside counsel from time to time. These lawyers expect to be paid. Trump thinks “not from the campaign” means “no campaign finance violations.” This is wrong and dumb.
  • “…from which he entered into, through reimbursement, a private contract between two parties, known as a non-disclosure agreement, or NDA.” This is not English. But I have a two-year-old so I’ve gotten pretty good at guessing at what he’s trying to say. He’s trying to say that Cohen and Daniels had an agreement between themselves, and not TRUMP. Because in the Trump lie, Trump is not allowed to know that his lawyer and his porn star were talking. But Trump no longer wants to say that Cohen spent his own money on it, because somebody has told Trump that would be a campaign finance violation. So he wants to say it was Trump’s money, through “reimbursement.” Only Trump ALSO doesn’t want to say that the he knowingly “reimbursed” his lawyer for paying off the porn star, so he’s couching it in the “retainer” language above. You follow?
  • The problem is: that’s not how retainers work. Retainers generally contemplate future legal services. They can be an account that lawyers can charge up to in their normal course of representation. They can represent an ongoing relationship between lawyer and client. But you don’t enter into a retainer agreement for services already rendered. That’s not really called a “retainer,” that’s called “A BILL.” Commonly, if a lawyer bills you, he or she tells you WHY.
  • On the campaign finance front, it’s still a campaign contribution if a person gives you something of value to help your campaign, even if you reimburse them later with your own money. That contribution has to be disclosed. It is still subject to contribution caps. It helps Trump not at all to say that he paid Cohen back, later, “not from the campaign,” if Cohen made an undisclosed contribution to the campaign in the form of paying hush money to Stormy Daniels. Moving on…
  • “These agreements are…..very common among celebrities and people of wealth.” Okay.
  • “In this case it is in full force and effect and will be used in Arbitration for damages against Ms. Clifford (Daniels).” Michael Avenatti might have something to say about that, but any time Trump wants to sit down for a deposition with Avenatti to clear this all up, the door is open.
  • “The agreement was used to stop the false and extortionist accusations made by her about an affair despite already having signed a detailed letter admitting that there was no affair. Prior to its violation by Ms. Clifford and her attorney, this was a private agreement.” Extortion is a line that you hear thrown around by some Trumpsters. They suggest that Daniels was trying to extort money out of Trump. There are two huge problems with this argument. 1) All reports suggest Cohen approached Daniels! You can’t extort money from somebody who comes to you and offers you money. 2) Daniels had already told her story about Trump in 2011. It was published in 2011. How are you going to blackmail somebody with “secrets” that have already been revealed? The fact that Trump was running for president might have given Daniels more leverage in negotiating the NDA. But… she couldn’t criminally extort Trump, even if she wanted to, since she had literally already told the story.
  • “Money from the campaign, or campaign contributions, played no roll in this transaction.” And we’re back to this. Again, for it to be a campaign finance violation, Trump doesn’t have to dip into his campaign coffers to pay the hush money. Having a lawyer pay the hush money, with a promise to get him back eventually, would be violation enough.

That that’s just the BS that is on the face of the tweets. If you scratch any deeper you immediately notice that the timeline here makes absolutely no sense, except as to suggest that Cohen violated campaign finance laws and Trump is lying.

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Cohen paid Stormy Daniels in October 2016. That fact alone suggests that it was a campaign contribution. Even if Cohen was on “retainer” at that time, retainers are not used to make what amounts to settlement payments. Retainers are used to pay lawyers, not pay lawyers back. If the nondisclosure contract was funded by Trump, Trump would have given money for Cohen to hold in escrow to complete the contract.

If, as Giuliani seems to suggest, Trump placed Cohen on “retainer” after he completed his work on the Daniels case, then that should have been to pay Cohen for future or additional work, not to repay the loan Cohen allegedly fronted Trump back in October. And, of course, that gets us into all of the questions of when Trump knew what he was paying $35,000 a month for, since both he and Cohen maintain that Trump did not know, and Cohen never told him about, Daniels.

Which brings up ANOTHER problem which is that, apparently, Trump either did NONE of this in writing or refuses to release any evidence or really any shred of PROOF that he and Cohen acted in the manner they say they did. Retainers, traditionally, are in WRITING. So are bills. So are loans. I can only assume that the S.D.N.Y. has some documentary evidence that speaks to the actual relationship between Trump and Cohen. Michael Avenatti is seeking documentary evidence about the nature of the relationship between Trump, Cohen, and Daniels. Does no such proof exist? If not, that is a huge problem for Trump and Cohen as they want people (and eventually a judge or a jury) to take on faith that they entered into a highly usual fee repayment agreement, on a handshake.

To recap, here’s the story, as it now stands, that Trump, Giuliani, and Cohen want you to believe:

In or around October 2016, Michael Cohen became aware of a 2011 interview in which adult film star, Stormy Daniels, claimed to have had sex with Donald Trump. Acting as Trump’s attorney, and thus protected by all normal standards of attorney-client privilege, Cohen contacted Daniels and began negotiating a nondisclosure agreement with her… without informing or alerting his client, Donald Trump, about the accusations or Cohen’s intent to settle the matter. Cohen did not do this to assist Trump’s presidential campaign. Cohen paid Daniels $130,000 as consideration for this nondisclosure agreement. He did so with his own personal funds, without ever informing his client, and without any expectation that he would be paid back. Later… at some undisclosed time, Trump decided to start paying Cohen $35,000 a month as a “retainer,” in the hopes that he would use the money to reimburse himself for the $130,000 Cohen paid Daniels that Trump now became aware of. These repayments continued for an undisclosed amount of time, while Trump was serving as the President of the United States, but out of his personal funds and not campaign contributions. Neither the initial payment, nor the reimbursements were disclosed. The agreement between Trump and Cohen has not been disclosed. Stormy Daniels is an extortionist witch. Hillary Clinton should be in jail. Karen McDougal is lying. Donald Trump has never watched Russian prostitutes pee on a bed. Russia is a hoax.

That’s what Trump wants you to believe, and if you believe all of that, you are an actual fool. There is no hope for you. You will be stupid forever and nobody can help you.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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