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  #1  
Old 12-07-2018, 07:58 PM
dontbesojumpy dontbesojumpy is offline
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Michael Cohen should get substaintial prison sentence even with his cooperation.

Today has been a relatively good day for Justice. The Charlottesville terrorist was found guilty...Manafort's lies came out and now it looks like they are driving for a few years jail time for Cohen, in spite of his cooperation.

Would there ever be a situation where Cohen worked on behalf and at the direction of "individual 1," receives jail time, but "individual 1" gets off without prison time?

All I know is I'd hate to be "individual 1."
  #2  
Old 12-07-2018, 10:16 PM
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IANAL so I have no sense of how serious person's "X" crimes were...especially since they are white collar crimes.

All I can say, sitting on the sidelines, is Mueller seems to gobbling people up left and right.

I can see why Trump appears worried (e.g. Trump's incessant tweets that it is a witch hunt and fake news...methinks thou dost protest too much).
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Old 12-08-2018, 12:09 PM
KidCharlemagne KidCharlemagne is offline
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IANAL either so perhaps one can come along and assuage or confirm my fears, but I'm a bit concerned that, since the special counsel is still calling for substantial jail time for Cohen, then that probably means that Cohen didn't give him enough to take down Trump.
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Old 12-08-2018, 12:54 PM
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IANAL either so perhaps one can come along and assuage or confirm my fears, but I'm a bit concerned that, since the special counsel is still calling for substantial jail time for Cohen, then that probably means that Cohen didn't give him enough to take down Trump.
Skimming through the filing yesterday, Mueller's recommendation seemed to come from (A) Cohen repeatedly and willfully turned down "cooperating witness" status which would have shielded Cohen from more penalties but also required him to willfully admit to crimes Mueller wasn't actively inquiring about and (B) the breadth of Cohen's crimes showed a marked disregard for the law multiple times and Cohen even reveling in his "fixer" status for Trump while committing crimes.

In other words, the guy is a criminal, was happily a criminal and refused to trade additional knowledge of his criminal activities for further legal protection. Mueller acknowledged the value of his testimony and that it confirmed other leads but Cohen gave up a lighter sentence by his own volition.
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Old 12-08-2018, 01:33 PM
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Someone correct me if I'm wrong (not at all uncommon), but IIRC the recommendation for incarceration came from the SDNY filing, not Mueller; the latter recommended no additional prison time because Cohen did cooperate with the Office of Special Counsel investigation.
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Old 12-08-2018, 01:38 PM
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Man its true that thing they say about two Americas, echo chambers, and alternate universes.

If you look on CNN this hefty sentence is a good thing that foreshadows that Trump is going down, whereas at Fox they are saying this means the exact opposite. We shall see I guess, I never really thought about it till now but Mueller probably not only takes his sweet time investigating because he is so thorough and wants to get it right, but its probably also a great psychological tool against all the people, informants, and witnesses that he investigates, giving them plenty of time to crack under pressure and spill the beans or wanting to renegotiate the terms for cooperation.
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Old 12-08-2018, 01:54 PM
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So the most serious thing as far as Trump is concerned, as far as I see it, is the Moscow Project cooperation. Most people are saying it's the campaign finance violations which Cohen told investigators Trump is complicit in, but I don't believe for a second that Trump would face serious problems over that, and here's why:

They would have to prove Trump knew it was a violation in order for it to rise beyond the level of a simple fine. Obama violated campaign finance laws to the tune of $1.9 million, but it was simply a paperwork error. He didn't intend to violate the law, so he was handed a fine, something to the tune of $350,000 iirc. In campaign finance law, it needs to be proven that one knowingly violated the law in order for it to be a criminal matter, as opposed to a civil one. Proving that Trump was aware that payments to Stormy Daniels were campaign finance violations is going to be difficult, I believe. The labyrinthine payment methods could very easily be described as discretion, hiding an embarrassing matter. Especially considering Trump had a long history of doing this, unrelated to any elections.

The Moscow Project, on the other hand, could be serious. On it's face, it's unseemly and questionable, but not illegal. However, if Mueller can prove that there was some sort of quid pro quo between Trump's campaign and Russian officials involved in the Moscow Project, some sort of agreement to help Trump in his election in order to help the Moscow Project come to fruition, that could absolutely be seen as a conspiracy with Russia - collusion. In the absence of this quid pro quo, it goes nowhere, but the possibility hangs out there like a dark cloud.

Last edited by Dacien; 12-08-2018 at 01:58 PM.
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Old 12-08-2018, 02:49 PM
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Someone correct me if I'm wrong (not at all uncommon), but IIRC the recommendation for incarceration came from the SDNY filing, not Mueller
You're correct and I was lazy (and erroneous) in using "Mueller" in referring to the federal investigation. I hadn't heard of Mueller making recommendations for lighter sentencing but that does't mean it didn't happen.
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Old 12-08-2018, 11:20 PM
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Michael Cohen's Sentencing Memorandums: Cohen had two Sentencing Memorandums filed on Friday (12/7/2018) located below:

The Mueller Investigation Sentencing Memo: https://www.documentcloud.org/docume...en-filing.html

This Sentencing Memorandum does not recommend any particular prison time for Cohen, but asks that the Judge sentencing Cohen consider how helpful and cooperative Cohen has/had been with the Special Counsel Investigation (SCI) and to consider running any prison terms concurrently. It is fairly generous in regards to Cohen.

The sentencing memo says that Cohen lied to the House and Senate investigations and also to the Special Counsel investigators about Russian interferance into the 2016 election, and about the Trump Tower Moscow plans. The details revealed in this document are stunning in exposing the level of deceit and make it clear that Trump was directly involved, but is overall generous to Cohen.


The SDNY Sentencing Memo is here: https://assets.documentcloud.org/doc...n-20181207.pdf

The Southern Distrct of New York Sentencing (SDNY) Memo covers tax evasion, false bank statements, false statements to Congress, and illegal campaign contributions.

This document is much less generous to Cohen and recommends "a substantial term of imprisonment" for Cohen due to a "marked" pattern of criminality throughout Cohen's professional life, for which he now desires "leniency" from the judicial system. It reasons that allowing Cohen ot avoid prison will send a message to other white-collar criminals that they can expect to receive "softer' sentences that those who commit other felonies.

It also highlights that Cohen has publicly claimed to be cooperating with the SDNY (and thus deserves to be treated better by the courts sytems), but that he is actually not cooperating with them at all.
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Old 12-09-2018, 09:56 AM
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"The special counsel may have forgiven you, but the state of New York's liable to be a little more hard-nosed about things."

The real takeaway here is the actual value of compliance departments in large enterprises. Without them, the sales guys get up to all sorts of nonsense.
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Old 12-09-2018, 09:57 AM
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So the most serious thing as far as Trump is concerned, as far as I see it, is the Moscow Project cooperation. Most people are saying it's the campaign finance violations which Cohen told investigators Trump is complicit in, but I don't believe for a second that Trump would face serious problems over that, and here's why:

They would have to prove Trump knew it was a violation in order for it to rise beyond the level of a simple fine. Obama violated campaign finance laws to the tune of $1.9 million, but it was simply a paperwork error. He didn't intend to violate the law, so he was handed a fine, something to the tune of $350,000 iirc. In campaign finance law, it needs to be proven that one knowingly violated the law in order for it to be a criminal matter, as opposed to a civil one. Proving that Trump was aware that payments to Stormy Daniels were campaign finance violations is going to be difficult, I believe. The labyrinthine payment methods could very easily be described as discretion, hiding an embarrassing matter. Especially considering Trump had a long history of doing this, unrelated to any elections.
...
IANAL, but I think you got mens rea wrong in that second paragraph. Obama didn't intend to violate the law (no mens rea), so he got off relatively lightly. Trump allegedly did intend to violate the law -- not knowing the cutoff for simple fine vs felony (ignorance of the law) is no excuse.

If I, say, run a program at work labelled Microsoft Word and it instead hacks into the White House network, but I really thought I was opening Word, I wouldn't be punished -- I didn't intend to hack into the White House. However, if I hack into the White House knowingly, but didn't know that such hacking was illegal, I would be in trouble, since I intended to break the law. Ignorance of the law is no excuse as they say.
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Old 12-09-2018, 10:13 AM
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"The special counsel may have forgiven you, but the state of New York's liable to be a little more hard-nosed about things."

The real takeaway here is the actual value of compliance departments in large enterprises. Without them, the sales guys get up to all sorts of nonsense.
SDNY is still the Feds.
  #13  
Old 12-09-2018, 01:28 PM
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IANAL, but I think you got mens rea wrong in that second paragraph. Obama didn't intend to violate the law (no mens rea), so he got off relatively lightly. Trump allegedly did intend to violate the law -- not knowing the cutoff for simple fine vs felony (ignorance of the law) is no excuse.

If I, say, run a program at work labelled Microsoft Word and it instead hacks into the White House network, but I really thought I was opening Word, I wouldn't be punished -- I didn't intend to hack into the White House. However, if I hack into the White House knowingly, but didn't know that such hacking was illegal, I would be in trouble, since I intended to break the law. Ignorance of the law is no excuse as they say.
In campaign finance law, intent matters.

https://apnews.com/479e8944b0304da08cf3b27278ceb514

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For a criminal prosecution, the Justice Department must prove that a defendant knowingly violated campaign finance laws.

That can be a tall task and is a much more rigorous standard than the one used by the Federal Election Commission, which has civil rather than criminal enforcement authority and imposes fines in cases where the violation wasn’t on purpose.

Last edited by Dacien; 12-09-2018 at 01:32 PM.
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Old 12-09-2018, 03:17 PM
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All I can say, sitting on the sidelines, is Mueller seems to gobbling people up left and right.
Yes, Ken Starr worked for four years and got nothing but Bill Clinton being slapped on the wrist.

Mueller has Eight Convictions and 30 Indictments.
https://medium.com/@KeithDB/a-runnin...s-f518b9a72827

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  #15  
Old 12-09-2018, 08:23 PM
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In campaign finance law, intent matters.

https://apnews.com/479e8944b0304da08cf3b27278ceb514
I think intent always matters, but what you're saying is that ignorance of the law IS an excuse when it comes to campaign finance laws. That's interesting and I didn't know that. Thanks!
  #16  
Old 12-09-2018, 09:35 PM
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I think intent always matters, but what you're saying is that ignorance of the law IS an excuse when it comes to campaign finance laws. That's interesting and I didn't know that. Thanks!
Well it's just a matter of whether it's an FEC fine for a transgression made through negligence, or a criminal prosecution due to it being a flagrant, intentional violation of the law. So it's not so much a matter of ignorance as it is a matter of intent.
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Old 12-09-2018, 09:44 PM
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Well it's just a matter of whether it's an FEC fine for a transgression made through negligence, or a criminal prosecution due to it being a flagrant, intentional violation of the law. So it's not so much a matter of ignorance as it is a matter of intent.
OK, now I don't follow again. I thought your cite meant that if you don't know you're violating campaign finance laws, you can't be criminally prosecuted. Are you saying that, if you intend to violate the law, but not too severely, then you're OK?

I think intent always matters, as per my examples above. That's what mens rea is about, as far as I know. You have to intend to commit the action that is a crime, even if you don't know it's a crime.

Your cite seems to say that you have to intend to commit the action and you have to know it's a crime.

In that context, can you explain your last sentence?
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Old 12-09-2018, 11:13 PM
Dacien Dacien is offline
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OK, now I don't follow again. I thought your cite meant that if you don't know you're violating campaign finance laws, you can't be criminally prosecuted. Are you saying that, if you intend to violate the law, but not too severely, then you're OK?
No, if you violate campaign finance law in a way that wasn't intentional (e.g., through failing to file proper paperwork by accident, engaging in an activity that was not intended to violate campaign finance law but instead to settle another unrelated matter) then you would find yourself fined by the FEC.

If, however, you intended to raise money outside the bounds of the law intentionally because you wanted a larger campaign war chest, or you otherwise violated the law knowing that that was what you were doing, then it could be prosecuted as a crime.

It's not a matter of how severe. If you knowingly violate the law over $10,000, you could be prosecuted. If you unintentionally violated the law by $1.9 million, you'd be fined. It's a matter of intent, not severity or amount.

Last edited by Dacien; 12-09-2018 at 11:14 PM.
  #19  
Old 12-10-2018, 12:10 AM
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No, if you violate campaign finance law in a way that wasn't intentional (e.g., through failing to file proper paperwork by accident, engaging in an activity that was not intended to violate campaign finance law but instead to settle another unrelated matter) then you would find yourself fined by the FEC.

If, however, you intended to raise money outside the bounds of the law intentionally because you wanted a larger campaign war chest, or you otherwise violated the law knowing that that was what you were doing, then it could be prosecuted as a crime.

It's not a matter of how severe. If you knowingly violate the law over $10,000, you could be prosecuted. If you unintentionally violated the law by $1.9 million, you'd be fined. It's a matter of intent, not severity or amount.
The problem is that your two examples are different. "Failing to file the proper paperwork by accident" means you didn't intend to do the action that broke the law. But "engaging in an activity that was not intended to violate campaign finance law" means you fully intended to do the action, but didn't know it was against the law.

These are different things. Legally, I can argue, for example, that I didn't intend to steal something--that I thought it was free. That shows I lack intent. But if I say that I didn't know borrowing something that isn't mine was a crime, I still would be convicted of theft. I would still have intent, even though I didn't know the law.

I'm not saying you're wrong about how this particular law works. I am saying that there is a difference between lacking intent and not knowing something is against the law. The latter is generally not an excuse.
  #20  
Old 12-12-2018, 12:36 PM
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So it comes down to 3 years in Federal Prison and a 2 million dollar fine, plus no more 50% discount on hot wings & quesadilla poppers or complementary refills of iced tea at Mar-a- Lago.

Last edited by Royal Nonesutch; 12-12-2018 at 12:37 PM.
  #21  
Old 12-12-2018, 12:43 PM
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Aye; Cohen gets 3 years is all.
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Old 12-12-2018, 12:57 PM
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Aye; Cohen gets 3 years is all.
It wont be in a PMITA prison. Will he get conjugal visits?
  #23  
Old 12-12-2018, 01:08 PM
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It wont be in a PMITA prison. Will he get conjugal visits?
? Don't know that one. Is that like a Club Fed?
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Old 12-12-2018, 01:12 PM
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  #25  
Old 12-12-2018, 05:51 PM
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So I am not trying to be difficult, but please explain to me how Trump is himself shielded from legal recourse if his stooge is going to jail for what he was told to do...?
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Old 12-12-2018, 05:57 PM
Euphonious Polemic Euphonious Polemic is offline
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So I am not trying to be difficult, but please explain to me how Trump is himself shielded from legal recourse if his stooge is going to jail for what he was told to do...?
He isn't. However the DOJ appears to be of the current opinion that a sitting president cannot be indicted.

On January 21, 2021, however, that may all change. Unless the "10 minute pardon" theory comes into play; Trump resigns 10 minutes before he is out of office, Pence is sworn in, and immediately pardons him for any and all crimes.
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Old 12-13-2018, 10:44 AM
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He isn't. However the DOJ appears to be of the current opinion that a sitting president cannot be indicted.

On January 21, 2021, however, that may all change. Unless the "10 minute pardon" theory comes into play; Trump resigns 10 minutes before he is out of office, Pence is sworn in, and immediately pardons him for any and all crimes.
Seems like they need to find whoever might swear in Pence and make sure they're incommunicado for an couple of days on either side of that period.
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Old 12-13-2018, 04:46 PM
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He isn't. However the DOJ appears to be of the current opinion that a sitting president cannot be indicted.

On January 21, 2021, however, that may all change. Unless the "10 minute pardon" theory comes into play; Trump resigns 10 minutes before he is out of office, Pence is sworn in, and immediately pardons him for any and all crimes.
I guess that was what confused me--I keep seeing "Trump is an unindicted co-conspirator." So the hitch is they just aren't going after him while president.

So does this carry over into all aspects of the Russian investigation--that no matter what tax or financial fraud/illegal actions, he will be allowed to serve out his term before anything is enforced?
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Old 12-13-2018, 06:04 PM
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I guess that was what confused me--I keep seeing "Trump is an unindicted co-conspirator." So the hitch is they just aren't going after him while president.
Correct.
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So does this carry over into all aspects of the Russian investigation--that no matter what tax or financial fraud/illegal actions, he will be allowed to serve out his term before anything is enforced?
Oh; you just had it right a second ago. No; he won't necessarily be allowed to serve out his term; he just won't be indicted while he's still holding the title of POTUS.
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Old 12-13-2018, 06:41 PM
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Aye; Cohen gets 3 years is all.
Don't be too sad yet. This may not be the end of his legal troubles, he's still got the state of New York to deal with.
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Old 12-13-2018, 09:04 PM
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Don't be too sad yet. This may not be the end of his legal troubles, he's still got the state of New York to deal with.
Doubt it. Don't think New York changed their rules on double jeopardy regarding similar state crimes. They could probably find something to charge him, I guess.
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Old 12-13-2018, 09:47 PM
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So I am not trying to be difficult, but please explain to me how Trump is himself shielded from legal recourse if his stooge is going to jail for what he was told to do...?
There's a different piece than just whether DOJ will indict while he's still in office.

Campaign finance is an area where ignorance of the law actually serves as a valid defense. The difference between a violation that's just a civil matter and one that's criminal is that the violator knowingly and willingly violates the law. (Cite) Evidence that Trump was directly involved in making the decision and telling Cohen to do something that is illegal is not enough to say that Trump committed a crime. I have yet to see evidence in the swirl of talk about being unindicted co-conspirator that Trump was aware he was violating the law. I might have missed something but that is an important element of the crime. Without that, Trump could be shielded from criminal charges even while Cohen was breaking the law.

Ignorance can be both bliss AND a criminal defense.
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Old 12-13-2018, 10:13 PM
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No, I don’t think that’s exactly right. IANAL and I’ve been wrong plenty of times in my life, so no guarantee here. But as I understand it.....

The party has to knowingly commit the act. Knowing that the act is illegal isn’t a necessary element of guilt.

If I’m walking down the street and happen upon an unattended Porsche with the key in the ignition and I hop in and drive it away, I’m guilty of Grand Theft Auto whether or not I’ve ever heard of that statute.

So if Trump knowingly participated in the act of making a payoff in order to hide a potentially inconvenient fact that if revealed might negatively affect his election, and obfuscated the payoff as something else, he has knowingly committed that act. It is not necessary for him to specifically know that this violates campaign finance laws in order to be guilty of that crime.
  #34  
Old 12-14-2018, 12:22 AM
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No, I donít think thatís exactly right. IANAL and Iíve been wrong plenty of times in my life, so no guarantee here. But as I understand it.....

The party has to knowingly commit the act. Knowing that the act is illegal isnít a necessary element of guilt.
That is the general principle but DinoR is specifically saying that it's different with campaign finance laws. Ignorance is not a defense for civil infractions but it is for criminal.
  #35  
Old 12-14-2018, 12:54 AM
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No, I donít think thatís exactly right. IANAL and Iíve been wrong plenty of times in my life, so no guarantee here. But as I understand it.....

The party has to knowingly commit the act. Knowing that the act is illegal isnít a necessary element of guilt.

If Iím walking down the street and happen upon an unattended Porsche with the key in the ignition and I hop in and drive it away, Iím guilty of Grand Theft Auto whether or not Iíve ever heard of that statute.

So if Trump knowingly participated in the act of making a payoff in order to hide a potentially inconvenient fact that if revealed might negatively affect his election, and obfuscated the payoff as something else, he has knowingly committed that act. It is not necessary for him to specifically know that this violates campaign finance laws in order to be guilty of that crime.
Cohen, Manafort, and Trump have destroyed any chance they ever had of claiming this was just an inadvertent error.

If a cop pulls you over and says "You were speeding. This is a 30 mph zone." And you respond by saying "I'm sorry officer. I thought the speed limit here was 55." then you can argue that you broke the law inadvertently.

But if the cop pulls you over and says "You were speeding. This is a 30 mph zone." And you respond by saying "What are you talking about officer? I was only driving 30 mph." you're no longer claiming an inadvertent violation. You're now acknowledging that you were aware of what the speed limit was and are claiming you weren't going faster than it. The fact that you are claiming you were in compliance with the law is an admission you were aware that the law existed.

And that's what Trump and his minions have been doing for the last two years. They've been claiming that they never broke the law even after they were informed about what the law says.

They can't go back now and change their story. They can't say, "Well, now that you've proven that my claims that I didn't do it were a lie, I want to go back and admit I did it but pretend I never knew what I was doing was illegal."
  #36  
Old 12-14-2018, 06:13 PM
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Cohen, Manafort, and Trump have destroyed any chance they ever had of claiming this was just an inadvertent error.

If a cop pulls you over and says "You were speeding. This is a 30 mph zone." And you respond by saying "I'm sorry officer. I thought the speed limit here was 55." then you can argue that you broke the law inadvertently.

But if the cop pulls you over and says "You were speeding. This is a 30 mph zone." And you respond by saying "What are you talking about officer? I was only driving 30 mph." you're no longer claiming an inadvertent violation. You're now acknowledging that you were aware of what the speed limit was and are claiming you weren't going faster than it. The fact that you are claiming you were in compliance with the law is an admission you were aware that the law existed.

And that's what Trump and his minions have been doing for the last two years. They've been claiming that they never broke the law even after they were informed about what the law says.

They can't go back now and change their story. They can't say, "Well, now that you've proven that my claims that I didn't do it were a lie, I want to go back and admit I did it but pretend I never knew what I was doing was illegal."
I certainly don't know one way or the other but what you are saying tends to make sense to me.

It's been Trump and Co.'s M.O. to deny, lie, lie, lie, argue it's not illegal, admit it but swear it's not wrong. Trump never even HEARD of Stormy Daniels, remember? He certainly never MET her, in spite of photographic evidence. OK OK he MET her, but only briefly. He doens't KNOW her. He certainly never has gross sex with her. When it came out Cohen admitted to making the payments, all he could do was swear he never knew.

Then on Fox and Friends, Trump himself said
Quote:
ďThere was no campaign funds going into this, which would have been a problem.Ē
OOPS.

Then immediately after that, because they can't trip hard enough on themselves, Giuliani destroys that false narrative with another: Trump reimbursed Cohen the $130k and knew of a "general arrangement" between the porn star and his lawyer.

Then, after swearing he never recorded Trump, Cohen's recording of Trump comes out:
Quote:
ďI need to open up a company for the transfer of all of that info regarding our friend David,Ē Cohen says in the recording. AMI CEO David Pecker is friends with Trump.
I don't see how anyone could feign ignorance at this point. It's been a part of how Trump handles every scandal-deny it until the truth comes out, then fight the truth with more lies. You can say he might not be guilty but he sure acts exactly how a guilty person would.
  #37  
Old 12-14-2018, 06:20 PM
dontbesojumpy dontbesojumpy is offline
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Join Date: Oct 2009
Posts: 1,087
Missed the edit window but:

ETA: Forgot to mention all the Pecker/AMI
stuff--he corroborates putting Trump in the room discussing the hush-money as an attempt to shield his campaign from the damaging publicity. "A high-level member of the Trump campaign" has been confirmed to be Trump himself by NBC news and Pecker attests to this fact and is working with Mueller.
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