I find myself gnashing my teeth over this past year on a topic involving prosecutorial tactics that is continually overlooked by legal analysts and pundits commenting on the Mueller investigation.
It is the issue of state crimes that is in my mind a panicky place for many of the defense lawyers involved in these investigations of clients like Donald Trump, Michael Cohen, Paul Manafort, Jared Kushner, Donald Trump, Jr., and Ivanka Trump.
Now, some have recently just barely discussed this topic, but they are missing the power of this being the “prosecutors’ ace card” in all of this.
Many criminal defense attorneys have clients that have confronted cases where a client commits offenses that are crimes in both the federal and state jurisdictions. As a prosecutor, and now as a criminal defense attorney, I have handled many such cases where crimes in both places are at play. It is a threat to any defendant, including Michael Cohen and President Trump to name a few from the list above.
Here is how it works. Campaign finance violations, tax evasion, etc…are typically both state and federal offenses. I have always stated that the Mueller prosecutors would be tactically wise to include state prosecutors into their investigative universe for such state law violations. Why? Because those charges are not pardonable by the President, and there is not DOJ memo with state prosecutors that says a sitting president cannot be indicted.
Let’s look at the fact that the Special Counsel has granted immunity to the President’s accountant, and to others that were involved in the payments to Stormy Daniels and Karen McDougal. If you remember, there is a tape that was seized from Michael Cohen where these payments were being discussed with the President. In it, the President asks if payment should be made with cash (never a good fact for a defendant arguing they were doing nothing wrong). On the tape, Cohen quickly rebukes the cash idea and indicates that he and the accountant (who now has immunity and is speaking with prosecutors) will work it out. It is clear that the President knew of the payment and that the payment was to be hidden from the public, and campaign filling regulations that require its disclosure, as the payment was clearly to assist the President’s campaign.
But, there are issues of tax evasion and other state law crimes, as well. The way the payment worked was that Cohen took out loans by illegally stating to loaners that the purpose was for the loan was for a different reason. The money then went to pay off these women (hush money). To reimburse Cohen, money moved back into his account for a much higher amount than he actually paid and written off on the President’s ledger sheets as payment for “legal fees.” This is a falsehood and the tape clearly demonstrate this, and Cohen has stated so to prosecutors.
My only question for the past year has been– is Mueller also blind to the power of state crimes in the face of the pardon power and DOJ memo? I would doubt it, but one never really knows in the absence of concrete facts.
To me, one of the most compelling developments (again largely unnoticed) is recent reference in Mueller’s court filings that interviews by federal prosecutors have occurred in some instances with the NY State Attorney General’s office present.
Bingo! Or to state another game analogy, this clearly shows me that Mueller is playing chess and not checkers.
I have handled cases where a client is subject to prosecution in both federal and state court. It is a two front war that is very challenging and dangerous for any client. Any decent attorney knows that you can plead, or be found guilty, in one jurisdiction, but could be subject to prosecution in the other jurisdiction. This is also why I find the tactics of Michael Cohen’s lawyers confusing unless there is a side deal with state prosecutors to not prosecute. Otherwise, what was the value to Cohen for pleading guilty and leaving such exposure on the table? If he has not worked out a deal, he is in serious peril in state court as well, especially as the US Attorney in the SDNY seems unimpressed by him and unlikely to step in with state prosecutors and ask for them to grant him leniency. On the Cohen score, something seems off here.
So, these cases cannot be understood in a vacuum of federal offenses only!
Lastly, it is interesting there is a case currently pending in the US Supreme Court that seeks to stop a person being prosecuted in this manner. They seek to have prosecutors elect one jurisdiction, saying prosecuting a person in two jurisdictions violates principals of double jeopardy.
This is a case to watch, especially given that we have a new makeup of Supreme Court Justices who actually may be inclined to sympathize with this argument. Interestingly, Senator Orin Hatch (R) has written an extensive amicus brief in support of stopping the doctrine, (known as dual sovereignty), which is the doctrine that allows for prosecutions in both federal and state court for the same violations.
So, for those thinking a Presidential pardon is their ticket out of all of this (like possibly Paul Manafort), they are playing with fire. I have no doubt whatsoever that state prosecutors will not allow this abuse of the pardon power to go unanswered. I have no doubt they will file charges and there is nothing the President can do about it.
[Image via Alex Wong/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.