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That Michael Cohen letter that Don Jr. tweeted out is ‘the opposite of the ‘gotcha” he claims it is

Michael Cohen and Don Jr

Michael Cohen and Donald Trump Jr. (Photos by Siegfried Anthony/STAR MAX/IPx 2022 and Francis Chung/POLITICO via AP Images)

Donald Trump Jr. touted a “just uncovered” letter that he claimed might spell problems for a Manhattan District Attorney investigation into hush-money payments.

Legal experts note, however, that it’s the “opposite of the ‘gotcha'” Don Jr. thinks it is, and they might expect prosecutors to introduce the letter themselves at any possible trial on those allegations.

Dated Feb. 8, 2018, the letter from Cohen’s attorney to the Federal Election Commission claimed that the former Trump fixer took it upon himself to “facilitate a payment of $130,000 to Ms. Stephanie Clifford,” the real name of pornographic film actress Stormy Daniels.

“Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed Mr. Cohen for the payment directly or indirectly,” the letter, signed by Cohen’s then-lawyer Stephen Ryan, asserted.

The letter also insisted that the payment “does not constitute a campaign contribution.”

Firing off a hasty and less-than-grammatical tweet, the former president’s son posted a screenshot of the letter and asked: “Is the key witness is [sic] lying to the Grand Jury and imploding their case?”

There is no question that Cohen lied about hush-money payments: Cohen admitted that in federal court when he pleaded guilty to campaign finance violations, false statements to Congress and other offenses.

In doing so, Cohen acknowledged — and federal prosecutors agreed — that he committed campaign finance violations “in coordination with and at the direction of” Trump. Cohen also acknowledged and provided evidence showing that multiple claims in that February 2018 letter to the FEC were false.

Through the federal court case, the public learned that Cohen disguised the payments by taking out a home equity line of credit from First Republic Bank, funneled it through the shell company Essential Consultants LLC, and paid Daniels’ then-attorney, Keith Davidson. Cohen did not pay Daniels directly, and he falsely claimed that the payment to Davidson was for a “retainer.”

Cohen’s guilty plea also included an admission that he was reimbursed $420,000 in monthly installments of $35,000, falsely accounted for as “legal expenses.” Donald Trump Jr. and his father should know that better than most because their signatures on $35,000 checks to Cohen are now public.

Conservative attorney George Conway pointed that out to Trump Jr.

“Seems more relevant that this check with your signature on it contradicts the letter’s assertion that the Trump Organization didn’t reimburse Cohen for the hush money he paid Stormy Daniels at your father’s behest, a crime that your father’s administration put him in jail for,” Conway wrote.

Former President Trump signed a check just like it.

Trump check to Cohen

Former federal prosecutor Mitchell Epner emphasized that the letter was a part of Cohen’s now-admitted cover-up.

“This is part of the criminal activity to which Michael Cohen plead guilty and for which he was sentenced,” Epner told Law&Crime. “Relying upon it as a ‘get out of jail free’ card puts too much weight upon it.”

That’s not to say that the defense might not try to raise the letter in any hush-money trial.

“The letter likely would be fodder for cross-examination, but even there it is not particularly strong, as one, the letter was signed by Michael Cohen’s attorney, not Michael Cohen, and two, Michael Cohen has subsequently admitted that this information was intentionally false,” Epner added.

CNN legal analyst Jennifer Rodgers, a longtime former prosecutor at the Southern District of New York, said she would expect the government, not the defense, to introduce it.

“This letter is actually supportive evidence for any testimony Cohen might give because part of his testimony would be to explain how he lied and did other bad things for Trump for many years,” Rodgers told Law&Crime. “This letter dates from when he was part of the conspiracy, so the fact that it contains lies about the $130,000 payment (many of which are easily proven to be lies using documentary evidence like the checks to Cohen that Trump signed) corroborates Cohen. I would expect the government to introduce it at trial. It’s the opposite of the ‘gotcha’ Trump Jr seems to believe it is.”

If Manhattan District Attorney Alvin Bragg (D) pursues a hush-money case against Trump, and a grand jury indicts him on those charges, legal experts have speculated that it would be based on a misdemeanor count of falsifying business records. That charge could be elevated to a felony if Bragg establishes an intent to defraud in the commission of another crime.

Legal experts say that any case based on the hush-money payments may have been challenged, for reasons other than the one Trump Jr. implies. The Department of Justice declined to prosecute such a case, and a prosecution based on New York State law could be more challenging.

Trump’s attorneys could argue that the statute of limitations won’t allow the charges to stick, but Bragg would have a counterargument at his disposal. Under New York law, the clock is paused when a defendant is out of state, as Trump was during his tenure and his post-presidency. Epner believed the DA would have a strong argument on that issue.

If Bragg cites federal campaign finance law as the separate crime that elevates the count of falsifying business records to a felony, legal experts say that would be an untested theory, which Trump’s defense team would be expected to challenge.

Epner sees this as Bragg’s “biggest hurdle,” should he pursue the charges being widely reported.

As for the facts supporting the hush-money payments, Epner opined: “The underlying misdemeanor case appears very solid.”

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."