Impeachment and The Michael Cohen Sentencing Memorandum Hoax

[johnkarls]

.
The following e-mails speak for themselves.

However, it should be noted that the first states that I have watched Bret Baier’s “Special Report” on Fox News for more than a decade.

This is because I have always monitored what all sides are saying vis-à-vis any particular issue.

Accordingly, I also watch the PBS Newshour every evening Mon-Fri.

As well as the Sunday-morning flagship political talk shows of the four major networks – (1) ABC’s “This Week With George Stephanopoulos,” (2) CBS’ “Face the Nation With Margaret Brennan,” (3) NBC’s “Meet the Press With Chuck Todd” and (4) “Fox News Sunday With Chris Wallace.”

I also monitor regularly the New York Times and Washington Post.

As well as several British publications.

And, of course, Foreign Affairs Magazine published by the Council on Foreign Relations.

[Other sources are consulted as needed.]

BTW for the curious, the reason for waiting until Sunday morning to take action with respect to a false attack that occurred the preceding Friday, I was raised “to sleep on” every important decision and, whenever possible, to “sleep twice” on it.

---------------------------- Original Message -----------------------------
Subject: Your False Attack on President Trump
From: john@johnkarls.com
Date: Sun, December 9, 2018 4:49 am EST
To: Bret Baier via http://www.bretbaier.com/contact-bret
Attachment:
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[Editorial Note: A copy of this e-mail was sent contemporaneously to President Trump via http://www.WhiteHouse.gov/contact.]

Mr. Bret Baier
Special Report

Dear Sir,

I have been a faithful viewer of your program for more than a decade because, until this past Friday, you have always at least tried to be fair and balanced (even though your panelists often are not).

However, this past Friday evening you conspired with Prof. Jonathan Turley to present an unfair and unbalanced report regarding the sentencing memorandum in the case of Michael Cohen with respect to the “hush money” paid to two women who claimed to have had affairs with President Trump.

You and Prof. Turley posited that the payments were illegal “campaign contributions” and proceeded to opine that there was probably an illegal “cover up” of these allegedly-illegal “campaign contributions”!!!

You and Prof. Turley failed to mention the Federal Election Commission’s “irrespective test” that holds that such “hush money” is a personal expense (rather than a campaign expense) because there is always a personal reason for such payments in addition to any campaign motive.

[Please see fec.gov/help-candidates-and-committees/making-disbursements/personal-use/.]

Moreover, you and Prof. Turley failed to mention the criminal trial of former Presidential Candidate John Edwards in which more than $1 million of contributions from political supporters was used to hide John Edwards’ affair AND LOVE CHILD with Rielle Hunter from both the public and John Edwards’ wife, Elizabeth.

Unlike President Trump’s situation in which PERSONAL FUNDS were used, the case against Mr. Edwards hinged on what Prof. Turley claimed (per thenation.com/article/did-john-edwards-break-law/) was a novel legal theory that expenditures by political supporters are CAMPAIGN FUNDS which should have been reported as such to the FEC -- per Prof. Turley all of the criminal charges against John Edwards depended on this novel theory that the funds were CAMPAIGN FUNDS RATHER THAN PERSONAL FUNDS.

The trial resulted in a “hung jury”!!!

YOU AND PROF. TURLEY SHOULD BE ASHAMED OF YOURSELVES!!!

Sincerely yours,

John S. Karls
JD, Harvard Law School, 1967
Who’s Who in American Law, 1988-2003
Who’s Who in America, 1988-2003
Who’s Who in the World, 1994-2003

*****
File Note Re The 6/5/2011 Article in The Nation Referenced in the foregoing e-mail to Bret Baier --

thenation.com/article/did-john-edwards-break-law/

Did John Edwards Break the Law?
The case against John Edwards is a stretch—and it could muddle campaign finance law for years to come.
By Ari Melber
JUNE 5, 2011

The Federal Election Commission, which regulates campaign spending, does not get much paperwork on candidates’ mistresses. According to the federal prosecutors who indicted John Edwards on Friday, however, the former senator should have been sending his mistress’s hotel bills to the FEC.

That is the most peculiar idea in a very peculiar indictment. It appears on the second to last page, under the charge of making “false statements” to the government, one of six counts Edwards faces.

The theory here is that gifts from Edwards’s supporters to his mistress were essentially donations to his campaign. And that they should have been counted by the campaign. Since they were not, prosecutors are accusing Edwards of filing false campaign reports with the FEC.

“Those reports failed to disclose hundreds of thousands of dollars in contributions from [donors to Edwards’s mistress],” reads the last line of the indictment. All the other counts against Edwards rest on the same theory. (He is accused of conspiring to receive, and actually receiving, campaign contributions as personal gifts under the table.)

So the prosecution has to get from the evidence of spending cash to hide an affair (which happened and is generally legal), to proving that campaign donations were made to hide an affair (which did not happen, at least in the literal or traditional sense of the term). It’s a reach.

This is a “novel claim,” according to George Washington law professor Jonathan Turley, who voiced support for Bill Clinton’s impeachment and is not exactly known to be soft on political corruption. Turley could not find a single “actual federal case” supporting the prosecution’s theory. Election law expert Melanie Sloan, who runs the anti-corruption group Citizens for Ethics and Responsibility in Washington, agreed that “no court has ever interpreted the definition of campaign contribution this broadly.” Turley adds that the defense can argue “this was not an effort to hide money from the FEC but to hide an affair from Edwards’ wife—a classic motivation.”

In any event, without guidance from previous cases, the text of the Federal Election Campaign Act will likely be key.

The law essentially states that gifts for a candidate’s personal expenses do not count if they would have been made irrespective of the candidate’s running for office.

So if Edwards can show that the payments were made regardless of his choice to run—or maybe before or after he ran—then the gifts would not count towards the law’s contribution limits. That logic would undermine all the counts against him. But things get even weirder.

To make this “novel” case stick, the prosecution is proposing that hiding Edwards’s mistress was a core mission of his presidential campaign. “A centerpiece of Edwards’ candidacy was his public image as a devoted family man,” states the indictment’s first allegation. It continues, “the communication strategy developed by Edwards’ campaign stressed the importance of publicizing, among other things, ‘that [his] family comes first.’”

This line is not provided to embarrass the defendant, who disappointed many on this score but to convert the personal to political. If being a “family man” was a campaign “centerpiece,” then preserving that image could be, supposedly, a campaign activity.

“Edwards knew that public revelation of the affair and pregnancy would destroy his candidacy by [undermining his] presentation of himself as a family man,” the indictment alleges, “and by forcing his campaign to divert personnel and resources away from other campaign activities to respond to criticism and media scrutiny regarding the affair and pregnancy.”

Here is where there may be repercussions beyond the participants in U.S. v. Johnny Reid Edwards. This particular case may turn on whether the personal payments should have been categorized as campaign donations. For all federal candidates, however, the FEC already bars spending official campaign funds on personal expenses.

The FEC explains the rule in a recent document providing advice for federal candidates:

Using campaign funds for personal use is prohibited, even when a federal candidate or officeholder is no longer seeking election to federal office.

The FEC document continues to explain that its “regulations list some expenses that are automatically considered to be personal use,” such as the candidate’s personal rent and “salary payments to the candidate’s family.” For other, closer calls on spending, the FEC uses a similar approach to its test for gifts. It’s worth quoting in full:

In determining whether expenses are for personal use or are legitimate campaign/officeholder expenses, the Commission uses the “Irrespective Test.” Personal use is any use of funds in a campaign account of a candidate (or former candidate) to fulfill a commitment, obligation or expense of any person that would exist irrespective of the candidate’s campaign or responsibilities as a federal officeholder. 11 CFR 113.1(g). More simply put, if the expense would exist even in the absence of the candidacy or even if the officeholder were not in office, then the personal use ban applies[emphasis added].

It seems obvious that money for a candidate’s child is an expense that exists “even in the absence of the candidacy.” (Lots of non-candidates pay alimony.)

So Edwards’s lawyers may argue that not only was there no obligation to report the private gifts but the prosecutors actually have the law backwards. It would have been a violation of campaign finance law if Edwards did what the prosecution says he failed to do—file and spend the money for his family as official campaign expenditures.

Now, if Edwards were convicted under this theory, would that be a precedent for treating payments to mistresses as legitimate campaign expenses? Would a candidate who made his personal fiscal responsibility a centerpiece of his campaign be able to use campaign funds to pay off personal debt?

It feels like the right answer must be no. But stretching campaign bans this far could lead to some very unsettling outcomes.

The “ambiguity of where to draw the line between personal and campaign expenditures” is the biggest problem for the prosecution’s theory, argues Professor Turley. “Just because hiding the affair would be of benefit to Edwards as a candidate as well as a spouse,” he told The Nation, “does not necessarily mean the dual benefit converts a cover-up of an affair into a campaign violation.” He added, “The uncertainty over where to draw the lines makes me uncomfortable with the criminal charge.”

No matter how one feels about John Edwards’s conduct, based on what is currently known, these charges should make a lot of people very uncomfortable.

---------------------------- Original Message -----------------------------
Subject: FYI – Email Sent to Bret Baier Copy to Pres Trump
From: john@johnkarls.com
Date: Sun, December 9, 2018 5:10 am EST
To: George Kunath; Jay Hansen; Marcia Hansen
Attachment:
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FYI, attached is an e-mail sent a few moments ago to Bret Baier, copy to President Trump.

---------------------------- Original Message -----------------------------
Subject: Re: FYI – Email Sent to Bret Baier Copy to Pres Trump
From: George Kunath
Date: Sun, December 9, 2018 10:43 am EST
To: john@johnkarls.com
Attachment:
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Good response.

[Editorial Note: George Kunath is one of my former NYC partners; he was, inter alia, our worldwide coordinating tax partner on Mobil Oil Corp; George and I have had a weekly multi-hour gabfest for the past 31 years.]

---------------------------- Original Message -----------------------------
Subject: Re: Re: FYI – Email Sent to Bret Baier Copy to Pres Trump
From: john@johnkarls.com
Date: Sun, December 9, 2018 6:22 pm EST
To: George Kunath
Cc: Jay Hansen; Marcia Hansen
Attachments:
Michael Cohen Plea Agreement With New York U.S. Attorney – 8/21/2018.pdf
Michael Cohen Plea Agreement With Special Counsel – 10/29/2017.pdf
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[Editorial Note: The attachments are not reproduced here because they are adequately described in the following e-mail.]

Dear George,

Thank you for your reaction. It’s always nice when another attorney agrees with your own legal analysis.

[Unlike Prof. Turley who can’t even agree with his own opinion reported in The Nation 7 years ago!!! And his own opinion of last August about which there will be further comment below.]

However, two real reasons for responding to your e-mail.

First, I was still fuming so much when I woke up again a few hours later (9:05 am EST) that I sent off to Sean Hannity a copy of the original e-mail sent to Bret Baier with a copy to President Trump at 4:49 am EST.

Second, the reason why I was so well-versed on this imbroglio was Michael Cohen’s 8/21/2018 Plea Agreement with the U.S. Attorney for the Southern District of New York (Attachment 1) – as distinguished from Michael Cohen’s 10/29/2018 Plea Agreement With The Special Counsel.

At the time of Michael Cohen’s 8/21/2018 plea agreement, there was WIDESPREAD CRITICISM from the likes of Prof. Turley that the U.S. Attorney had bludgeoned Michael Cohen into pleading guilty to six crimes WHICH HAD NOTHING TO DO WITH CAMPAIGN CONTRIBUTIONS OR PRESIDENT TRUMP (five counts of tax fraud and one count of fraud regarding a false loan application) – and two alleged crimes regarding the “hush money” payments WHICH WERE NOT CRIMES FOR THE REASONS STATED IN MY ORIGINAL E-MAIL OF EARLIER THIS MORNING!!!

It’s as if the U.S. Attorney had added a ninth count alleging that Michael Cohen defamed U.S. Supreme Court Justice Ruth Bader Ginsberg by referring to her as “Justice Ginsberg”!!!

Of course the U.S. Attorney has enough leverage with the first six counts to make Michael Cohen plead guilty to three additional NON-CRIMES!!!

But just because Michael Cohen pleads guilty to six crimes and three NON-CRIMES, does NOT make the NON-CRIMES criminal!!!

Now Bret Baier and Prof. Turley have decided to contradict themselves and pretend the NON-CRIMES are in fact criminal!!! Without even mentioning their previous opinions to the contrary!!! Shame on them!!!

Your friend,

John K.