Undercover Prosecutor Merchan Helps Bragg Lawlessly Stress Cohen’s Guilty Plea Andrew McCarthy
The judge in Trump’s Manhattan criminal trial has stacked the deck against the former president.
Editor’s Note: This is the first of two columns on how Judge Juan Merchan has allowed prosecutors from Manhattan district attorney Alvin Bragg’s office to prove a federal campaign-finance crime against former president Donald Trump by relying on blatantly inadmissible evidence — the guilty pleas of Michael Cohen and a non-prosecution agreement David Pecker struck with the Justice Department. The second column will appear tomorrow.
How far out on a limb is Judge Juan Merchan willing to go to help Manhattan’s elected progressive Democratic district attorney, Alvin Bragg, convict former president Donald Trump based on inadmissible evidence?
Very far.
As I’ll discuss in this column and a second one tomorrow, the inadmissible evidence in question consists of (a) guilty pleas by Trump’s former lawyer, Michael Cohen, to two Federal Election Campaign Act (FECA) felonies in a case brought against him by federal prosecutors in the Southern District of New York (SDNY); and (b) a non-prosecution agreement that former American Media Inc. CEO David Pecker — Trump’s longtime friend, who controlled the National Enquirer — entered into with the Justice Department because he feared being indicted under FECA. (Relatedly, AMI agreed to pay a fine to the FEC.)
To avoid too much redundancy, let’s focus on Cohen’s guilty pleas, which trigger the same legal objections as the non-prosecution agreement and the fine. The two pleas relate to non-disclosure agreements (NDAs) that Cohen helped obtain for Trump’s benefit during the 2016 presidential campaign in connection with two women — Karen McDougal and Stormy Daniels — who claimed to have had extramarital affairs with Trump in 2006. McDougal, a former Playboy model, was paid $150,000 by the National Enquirer, pursuant to an arrangement Cohen, then a lawyer for Trump and the Trump Organization, made with Pecker. Subsequently, when Pecker balked at paying Stormy Daniels (a porn star whose real name is Stephanie Clifford), Cohen paid for that NDA himself — only after, he claims, Trump promised that he’d be reimbursed, which he was in monthly installments in 2017.
We have been over why the guilty pleas are worthless (see, e.g., here and here). In my opinion, as a former SDNY prosecutor who worked there for nearly 20 years — and was a supervisor there for over a decade — they are worthless as evidence. But you needn’t agree with me on that because it is incontestable that they are worthless — or at least should be — as a matter of law.
I’ll start by reiterating why they are worthless as evidence. NDAs are technically not campaign expenditures under FECA. The category of actionable campaign expenditures is limited to expenditures that would not exist but for the campaign — e.g., polling or get-out-the-vote costs. The fact that the campaign motivates an expenditure is irrelevant if the expenditure is not within this narrow category.
To be more concrete, Trump was (and is) a married celebrity billionaire and businessman. It so happened that, in 2016, Trump ran for president, which gave Daniels leverage to pressure him to pay for her silence. Yet, there are many other contexts — wholly apart from politics — in which Daniels could have sought to pressure him into paying for an NDA. Hypothetically, Trump could have been in the running for a big TV gig or real-estate project, which could have given Daniels leverage. Moreover, Trump could have been concerned that his wife would divorce him and his family would be humiliated if the Stormy fling became public. In sum, a long-ago (alleged) sexual escapade created a vulnerability that, for many reasons, Trump might eventually have to attempt to conceal by buying Daniels’ silence; the fact that the campaign turned out to be the leverage point that Daniels exploited did not make the payment a FECA campaign expenditure.
This is what Bradley Smith, a former FEC commissioner and perhaps the nation’s top legal expert on FECA, would have explained to the jury. Judge Merchan, however, did not allow the defense to elicit Smith’s testimony — although Merchan has let both Cohen and Pecker, who have no expertise in this esoteric area of law, opine on the subject. The explanation Smith would have given is bolstered by the determinations of the Justice Department and the FEC, the two federal entities given exclusive enforcement jurisdiction over federal election law by Congress, that Trump should not be indicted either criminally or civilly — determinations that Merchan has kept from the jury despite permitting extensive evidence that the two federal agencies decided to take action against Cohen and Pecker.
So the guilty pleas fail the basic test of probative value: Cohen’s claim that he was guilty is wrong. But there is much more to it than that. The SDNY had Cohen over a barrel: He was caught in bank-fraud and tax-evasion offenses involving over $4 million — crimes that had nothing to do with Trump. He was facing years in prison over these crimes, and he was desperate to avoid that fate. The problem: His only way to avoid prison would be to convince the SDNY to give him a cooperation agreement. (Under federal sentencing law, the prosecutor can file a “substantial assistance” motion with the court, which allows the judge to impose a no-incarceration term even if the cooperating defendant is otherwise looking at many years of imprisonment.) Cohen had no one against whom to provide cooperation in connection with his crimes because he was the principal culprit. What the SDNY was interested in was making a case against Trump; but Cohen had nothing incriminating on the then-president . . . unless the two NDAs were deceptively framed as FECA crimes.
Ergo, to try to earn a cooperation agreement, Cohen pled guilty in 2018 to two felony FECA charges in addition to the tax and bank charges. It sounds counterintuitive that admitting guilt to additional “crimes” could benefit a defendant, but in this instance, Cohen hoped it would — the FECA guilty pleas were to be building blocks of a FECA case against Trump; if such a case were indicted, the SDNY would make the substantial-assistance motion for Cohen, and he could escape imprisonment for his other crimes.
The pleas were also a no-lose proposition for the SDNY: Because Cohen was pleading guilty rather than going to trial, the federal prosecutors would never have to prove the campaign-law offenses in court unless they eventually charged Trump. And because defendants who plead guilty waive their right to appeal, SDNY prosecutors would never have to defend the pleas’ inadequate legal basis before the Second Circuit appellate court. The SDNY shrewdly calculated that Judge William Pauley — a Clinton appointee who had been a lawyer for New York State and had no expertise in federal campaign law — would not question the legal basis for the guilty pleas based on the NDAs. (Judge Pauley died of cancer in 2021.)
In the end, Cohen’s quest for a cooperation agreement predictably cratered. The SDNY determined that he was not a credible witness. Beyond that, he is a convicted perjurer, having pled guilty in connection with lies he told during the Mueller probe. And to repeat, the Justice Department determined that the NDAs were not a sound basis for a prosecution of Trump, and the FEC concluded that they were not even sufficient for a civil lawsuit against Trump. (Civil suits have a lower burden of proof than criminal charges.) Indeed, if the NDAs had been campaign expenditures, Trump could have paid for them with campaign funds — although, had he done so, does anyone doubt that Bragg would have indicted him for falsifying business records to conceal his use of campaign funds to pay personal expenses?
For all those reasons, then — the insufficiency of the NDAs as legally cognizable campaign expenditures, Cohen’s motivation to say he was guilty in order to try to convince the SDNY to sign him up as a cooperator, the SDNY’s awareness that Cohen’s supposed campaign-law crimes would never have to be defended in court, and the DOJ and FEC decisions, even under the Biden administration, not to proceed against Trump — it is my opinion as an experienced former SDNY prosecutor that Cohen’s guilty pleas are worthless as evidence. That is to say, in the parlance of evidentiary rules, the probative value of the guilty pleas is negligible and thus substantially outweighed by the high probability of their wasting time, confusing the jury, and, most importantly, unfairly prejudicing the jurors against the accused.
Naturally, I hope you are persuaded by my argument about evidentiary worthlessness. But remember, it doesn’t matter if you’re not. As a matter of law, Cohen’s guilty pleas are inadmissible as evidence against Trump. No one disputes this. Even Judge Merchan and Bragg’s prosecutors have paid lip-service to this rudimentary principle. They have thus pretended that Cohen’s federal-election-law guilty pleas are relevant only on the issue of Cohen’s credibility.
That, you should understand, is the essence of their scheme to get Trump convicted. In a case in which Bragg accuses Trump of conspiring with Cohen to violate federal election law, it is outrageous that Merchan permitted the jury to be told about Cohen’s guilty pleas — in effect, guilty pleas to the very “crime” that Bragg has manufactured in order to prosecute Trump. The purpose of informing the jury about a government witness’s prior crimes and bad acts is to benefit the defendant. But in this instance, the defendant asked to suppress this information because, in terms of Cohen’s credibility, it adds nothing. Everyone knew the jury was going to learn that Cohen is a convicted perjurer and fraudster, a serial liar, and a disbarred lawyer who needs Trump to be convicted lest his opportunities to cash in evaporate. There was no reason to alert the jury to Cohen’s campaign-law guilty pleas because they do not move the needle at all in terms of weighing what passes for Cohen’s credibility.
The defense did not want these guilty pleas to be any part of the case. Merchan knew this was a sound position; but without Cohen’s guilty pleas — and, relatedly, Pecker’s entry into a non-prosecution agreement, along with AMI’s agreement to pay a fine to the FEC — Bragg would have nothing to tell the jury about FECA crimes.
Bragg alleges that Trump falsified his business records in 2017 to conceal FECA violations. Yet, there is no evidence that Trump was even thinking about FECA, much less willfully violating FECA, when Daniels was paid in 2016 and when Cohen was reimbursed in 2017. Bragg is trying to fill this gaping hole in his case using the inadmissible evidence — i.e., by telling the jury again and again and again that Cohen pled guilty to committing FECA crimes at Trump’s direction, and that Pecker feared being prosecuted (though he was not) for committing a FECA crime for Trump’s benefit. Merchan is letting the district attorney get away with this.
Here’s how the scheme works. Bragg’s prosecutors weave the guilty pleas into the testimony, presenting them as a factual narrative that supposedly establishes Trump’s guilt as an accomplice. Then, after this story has been seared into the jurors’ minds, Merchan gives a bland instruction that the guilty pleas are not admissible against Trump. And because Merchan is the judge and has already ruled against the defense objections, no one gets to stand up and say: If the pleas are not admissible against Trump, then why on earth are you letting Cohen talk about them as if they show Trump is guilty?
The ruse here would be hilarious if it weren’t so cynical. Merchan knows the evidence is inadmissible against Trump, but he is purporting to admit it because it is relevant to the credibility of Cohen and Pecker. Of course, the only party in the case that has an interest in impeaching the credibility of Cohen and Pecker is the defense. Again though, Team Trump did not want the inadmissible evidence for that purpose. Even without the FECA guilty pleas and non-prosecution agreement, Trump’s lawyers had plenty of impeachment material; they wanted this FECA information out of the case because, patently, it is unfairly prejudicial to Trump and certain to sow jury confusion.
It is the prosecutors who want Cohen’s guilty pleas and Pecker’s non-prosecution agreement in the case. But they don’t want it to impeach their own witnesses; they want the jury to believe their witnesses. No, they have injected the FECA pleas and non-prosecution agreement into the case for the precise reason why a competent, non-biased judge would exclude that information from the case: to persuade the jury that because Cohen and Pecker believe they violated FECA, Trump must have violated FECA.
Merchan is preposterously rationalizing that “witness credibility” justifies admitting the controversial evidence because, in general, a witness may be impeached with prior crimes and acts that are pertinent to honesty. The judge well knows, however, that the general rule does not apply when the prior crimes add little or nothing to the credibility assessment but the jury could easily be misled into relying on the witnesses’ guilty pleas to convict the defendant. Merchan also knew the prosecutors were not eliciting Cohen’s FECA guilty pleas and Pecker’s FECA non-prosecution agreement so the jury could weigh the credibility of those witnesses. It could not be more apparent that Bragg’s team is using this evidence to establish Trump’s guilt. Merchan is knowingly and intentionally letting them do it.
As we’ll see tomorrow in looking at how the testimony actually played out in court, the collaboration between the prosecutors and the judge is a lot easier to comprehend than anything Bragg has charged against Trump.
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