The smoking gun and the scarlet letter

The emerging case against Trump for simple bribery.

To review. Donald Trump is manifestly unfit to serve as President of the United States, by either mental capacity or moral character. The procedure for removing an unfit President is basically by way of impeachment. I’ve covered removal for mental incapacity by the 25th Amendment before, and maintain my view that it may still come into play as a shortcut, but let’s follow the CW that it’s down to impeachment. I will also follow constitutional lawyer Stephen Griffin’s argument that contrary to the intentions of the authors of the US Constitution, who saw impeachment as an essentially political safeguard, conviction now requires proof of an indictable offence – though I would add that nothing stops the Congress from taking wider aspects into consideration. Griffin’s reasoning is even more convincing in the near-certain political environment for Trump’s impeachment: that is, a Democratic majority in the House after November, but either a continued narrow Republican majority in the Senate, or a large blocking minority. (If the GOP holds the House, it won’t arise at all.) It will take a knockdown case to secure conviction.

So far, the possible charges have been:

1. Collusion with agents of the Russian government to manipulate the Presidential election in 2016.

2. Obstruction of justice by interference in the investigation of 1.

The second is a matter of public record: Trump admitted on TV that he fired James Comey as Director of the FBI because of the Russia investigation. The trouble here is that lying to police officers investigating you as a suspect is widely seen as fair self-defence, a technical crime like speeding on an empty rural road. The counterargument is that higher standards apply to the head of the executive, including federal law enforcement, who has sworn an oath to uphold and enforce all the laws. This is not likely to sway Trump’s core supporters, who are also now also the core supporters of Congressional Republicans.

The former is overwhelmingly likely from the Steele dossier, numerous credible press accounts of funding flows and meetings involving Trump’s inner circle and Russians close to the Kremlin, the charges against and convictions of Papadopoulos, Flynn, Manafort, Gates, and van der Zwaan, and Trump’s pattern of leading over backwards in favour of Russian interests in foreign policy. Mueller is no doubt filling out the details. The trouble is that Vladimir Putin is a career intelligence officer trained (partly in his work with Mischa Wolf’s Stasi) to cover his tracks with great care, and unless Mueller gets very lucky there won’t be conclusive evidence of the involvement of the Russian government. It will all just be persons “close to” Putin. Again, there will be a reasonable doubt that Republican senators can draw on to justify a vote to acquit.

But now, for the first time, we can see the outline of a third charge that could in principle be proven conclusively and has no such ambiguities: bribery.

The story is incomplete and in some parts speculative. But it stacks up.

Trump’s personal lawyer, a mob-connected sleaze called Michael Cohen, accepted large sums of money from companies. Bloomberg:

Cohen’s shell company, Essential Consultants LLC, received a total of $4.4 million in payments from a range of sources with an interest in influencing Trump, including the pharma giant Novartis AG [$1.2m], Korea Aerospace Industries Ltd. [$150,000} and AT&T Inc. [$200,000], seeking to pull off its merger with Time Warner Inc.

Cohen’s shell company also received a payment from

a New York-based investment firm called Columbus Nova. The firm’s biggest client is the Renova Group, a conglomerate controlled by the Russian billionaire Viktor Vekselberg, who has already been interviewed by special counsel Robert Mueller’s investigative team.

The source of this remarkably detailed information is Stormy Daniel’s lawyer Michael Avenatti, a high-profile LA ambulance chaser who appears, unlike the Trump legal team, to know what he’s doing. A commenter of Josh Marshall’s who works in financial compliance says that the format of the documents is exactly that of the SAR reports that bank officers like him file of suspicious transactions. How would Avenatti know this if he’s making it up?

It’s obvious that Cohen had no useful expertise to offer on pharmaceuticals policy, telecoms mergers, or aerospace contracts: beyond his skills as a fixer, his professional expertise is limited to New York real estate and the taxi business. It may be provable that the companies were paying for access to and influence with Trump.

Did they get it? If Cohen suckered them and gave nothing in return, no. But Cohen lazily used the same shell company to pay off Stormy Daniels ($130,000) and Shera Bechard ($1.6m) in return for non-disclosure agreements about extramarital affairs. Cohen even reused the same NDA template, down to the pseudonyms.

An aside on Bechard. Her affair is supposed to have been with Elliot Broidy, another sleazy associate of Cohen’s. Paul Campos has a very plausible speculation that the affair was not with Broidy (a very rich convicted felon with no reputation to lose, and stably married) but Donald Trump, who has a pattern of pursuing Playboy models and having unprotected sex with paramours, and a vital interest in Bechard’s silence. Shera Bechard claimed in the negotiations that she conceived a child from the affair and had an abortion, though the hush agreement does not recognize the claim. (Source, citing the WSJ verbatim).

It all looks as if Essential Consultants was a simple slush fund. It took in (inter alia) bribes from corporations and Russian oligarchs, and (inter alia) paid out to Trump’s discarded mistresses. The sequence seems to have been the reverse, which changes nothing, except that it introduces the need for a temporary financier. If this is all so, Mueller or the US Attorney for New York can fairly easily prove it.

The missing component of the smoking gun is evidence that Trump was aware of Cohen’s manoeuvres on his behalf, or received part of the take. It is possible that Cohen was just acting on his own as a conman, but it does not seem likely. Did they talk? To put it mildly, neither of them has anything like Putin’s tradecraft, or even much common sense. They should have talked only face to face, outdoors in the Rose Garden. But Cohen is reputed to have recorded phone conversations. Trump has always bluffed his way out of trouble, which does not work against the likes of Robert Mueller. Somewhere, there may well be a recording or document that pins Trump down to the crime of bribery.

Oddly enough, Trump has just announced that after all he won’t be pursuing his campaign promise to allow Medicare to negotiate down drug prices. This is naturally quite unconnected to Novartis’ $1.2 million paid to Cohen. Or is it? Maybe Novartis got their money’s worth. Note to other amoral CEOs: AT&T are still being blocked by the DOJ over their merger plan, so got nothing for their $200,000. But Korea Aerospace ($150,000) are on track to share in a big contract for trainer jets, so Cohen’s implied fee scale is confusing.

Comments especially welcome on the law here. The statutory provision is 18 U.S. Code § 201. It certainly covers indirect payments through an agent like Cohen, and does not SFIK require that the corrupt contract be performed. An interesting wrinkle is that it’s a two-place crime: if there’s a briber, there must be a reciprocal bribee. But the trials can I suppose be separated. What if the US Attorney for New York indicts and secures a conviction against Novartis for bribing the President of the United States?

I suggest this charge would not work out as well politically for Trump as obstruction or collusion. It’s a simple and understandable offence, and the evidence (if it’s there) will likewise be simple and incontrovertible. Trump’s base won’t like it: especially if Campos’ theory about Ms. Bechard pans out. Paying for an abortion out of a bribe is not something evangelical voters can just brush off. If a good part of his base abandons him, then a conviction in the Senate enters the bounds of possibility.

You have to be sorry for Shera Bechard. She has sought to defend her privacy rather than exploit the notoriety like her successor Stormy Daniels. But it’s gone now. Pin on your scarlet letter (A for Adulteress, A for Aborter, A for Advocate, A for American); and wear it with courage and pride to bring down your former lover, a bad man who should never have become President of your country. We shall all be greatly in your debt.

Author: James Wimberley

James Wimberley (b. 1946, an Englishman raised in the Channel Islands. three adult children) is a former career international bureaucrat with the Council of Europe in Strasbourg. His main achievements there were the Lisbon Convention on recognition of qualifications and the Kosovo law on school education. He retired in 2006 to a little white house in Andalucia, His first wife Patricia Morris died in 2009 after a long illness. He remarried in 2011. to the former Brazilian TV actress Lu Mendonça. The cat overlords are now three. I suppose I've been invited to join real scholars on the list because my skills, acquired in a decade of technical assistance work in eastern Europe, include being able to ask faux-naïf questions like the exotic Persians and Chinese of eighteenth-century philosophical fiction. So I'm quite comfortable in the role of country-cousin blogger with a European perspective. The other specialised skill I learnt was making toasts with a moral in the course of drunken Caucasian banquets. I'm open to expenses-paid offers to retell Noah the great Armenian and Columbus, the orange, and university reform in Georgia. James Wimberley's occasional publications on the web

15 thoughts on “The smoking gun and the scarlet letter”

  1. First, I disagree that impeachment requires an indictable offense. As the Griffin post you link to states: "There is a large measure of consensus on the meaning of the 'high crimes and misdemeanors' standard, which I call the 'Hamiltonian vision.' The Hamiltonian vision is that impeachment can be used for a broad category of 'political' offenses. Most scholars agree that impeachment does not require Congress to allege an indictable offense or other violation of law. " Griffin, of course, goes on to argue that the history of past presidential impeachments has modified the original intent to the "indictable offense" standard.

    However, take a look at the Nixon articles of impeachment, particularly Article I, paragraphs 8 and 9, and Article II, paragraph 5.… In the present case, Trump's apologists have argued loudly, and correctly, that the Presidential pardon power is absolute and cannot be deemed to be a criminal offense. However, using that power would certainly be a misuse of " the executive power . . . in violation of his duty to take care that the laws be faithfully executed" and, thus, even under the "Nixon" standard, an impeachable offense.

    BTW, the Campos theory is interesting and would seem to me likely to be the only way that third-party money inured directly to the benefit of Trump. It is entirely likely that monies collected by Cohen went into his own pocket. Of course, this is why we need to see all of the documents pertaining to payments from Trump or his entities to Cohen and the backup (invoices, etc.) from Cohen with respect to those payments and records of all of the funds going into and out of the Cohen LLC.

    1. Whatever the legal merits on the grounds for impeachment, it surely remains highly probable that the Senate Republicans would use the higher standard as an excuse to acquit, if there isn't proof of an indictable offence. Could a Democratic House even adopt articles of impeachment on the basis of a report by Mueller that basically says "President Trump has committed all sorts of improper acts, but nothing that meets our standards for a criminal indictment"? They need one that says "President Trump, along with other improper acts, has committed the following indictable offences. My reading of the Constitution is that it's up to Congress to pursue both matters through its powers of impeachment."

      On abuse of the pardon power, there's a nice legend from the time of Luther's campaign against papal indulgences in Germany, and especially their mass-marketing by Johann Tetzel. Wikipedia:
      "After Tetzel had received a substantial amount of money at Leipzig, a nobleman asked him if it were possible to receive a letter of indulgence for a future sin. Tetzel quickly answered in the affirmative, insisting that the payment had to be made at once. The nobleman did so and received thereupon letter and seal from Tetzel. When Tetzel left Leipzig the nobleman attacked him along the way, gave him a thorough beating, and sent him back empty-handed to Leipzig with the comment that it was the future sin which he had in mind."

      Broidy, a rich man, apparently supplied the funds for the hush payment to Bechard. I wonder if he was reimbursed by Cohen out of the later Novartis/AT&T/etc inflows.

  2. Both NDA's (the Stormy Daniels and the Bechard) reflect the protected party as being "David Dennison." She is currently represented by Peter Stris, who is also Karen McDougal’s lawyer. (Daniels, Bechard, and McDougal had all been represented in their negotiations with, well, whomever, by Keith Davidson.) The reason that I think that we can doubt the Campos theory is that Bechard can break it wide open merely by publicly stating that Trump was the One. Perhaps Stris is waiting for the optimal time to make that disclosure; perhaps not, because there's no disclosure to be made.

    As to the possibility that some of the cash paid to Cohen went back to Broidy, I assume that, if that is the case, they will both argue that the cash was in consideration of continuing professional education that Broidy had provided to Cohen in the area of influence peddling.

    1. Bechard has reason to fear going public, especially if the lover was Trump. She'd have a worse time than Hester Prynne.

      I'm still staggered than anyone would pay Michael Cohen real money for legal services.

      1. One has to admire the bravery of women like Clifford, McDougal, and the 20-odd accusers. Death threats must abound. In a just world, their faces would be carved on a mountain as partial thanks of a grateful nation.

      2. Hilariously, Korea Aerospace claims it paid Cohen for help with its accounting system.

  3. "Paying for an abortion out of a bribe is not something evangelical voters can just brush off."
    Sadly, but not surprisingly, they're way ahead of you on that one. Evangelical leaders have taken to connecting Trump with (their view of) Cyrus the Great: a man of no great holiness who was nonetheless raised up by God to save the Jewish nation. So there's no reason to think he won't keep his base, evangelical and otherwise.

    1. I trust the set of evangelicals who respond to this con must be quite small. You need both to recognize the name Cyrus from Isaiah, and know so little about the real political genius that the attempted identification with a cheap grifter fails to arouse horse laughter.

      1. I truly wish your trust was justified.
        That said, there's a good bit to unpack here. (1) In defining "the set of evangelicals": we need to make clear that we're talking about white evangelicals, who voted for Trump in greater numbers than they voted for George W. Bush and who also went heavily for accused pedophile Roy Moore in the Alabama Senate race. African American and Hispanic evangelicals were never part of the "evangelical base" that Trump relies on. This group continues to support Trump in large numbers. (2) On recognizing the name Cyrus: as a rule evangelicals know their Bible at least to some degree. They tend to misinterpret a fair bit, but then any story can generally be turned to a variety of purposes. Cyrus is also associated with the important and well-known story of Daniel. (3) "know so little about the real political genius": correct. Many evangelicals know their Bibles very well but don't know the history surrounding the purported events. Preachers and teachers provide the historical context (with varying degrees of accuracy) from the pulpit or in Sunday School, or else they don't. Haaretz provides some background about the Trump-Cyrus connection , but Googling "Trump Cyrus" will also get you a good number of sources, including references to Netanyahu himself making the comparison. He knows what plays with American evangelicals.
        As for the abortion itself, if indeed Trump was responsible for it, evangelicals can easily say that was in the past, one of Trump's religious spokespersons will say he's repented, and since he's on record as saying women who get abortions should be punished, that puts him further to the right than many evangelicals, in the context of a religion that rewards stronger and less nuanced "bright lines."
        I really don't know what would break his connection with evangelicals at this point.
        (Note: there is, as always, a complicating factor. I don't have a reference, but I understand that many younger evangelicals are rejecting that label, in part because of its negative connotations in the ear of Trump. I hope someone is keeping track of this apparent shift in nomenclature, as I'd like to learn more about what's going on.)

        1. Here's an article by a religious scholar (former evangelical) that sums up at least one important aspect of the evangelical perspective.

        2. I agree that an abortion is not going to be a deal-breaker for Trump's evangelical fans. And whatever Bible-knowledge the flocks lack can be supplied by their pastors, who certainly know their Bibles (except for a few passages from Jesus that He couldn't possibly have meant anyway), and probably have a special concordance that pulls out justifications for lying down with evil for use in any rationalization.

          Trump could shoot Sean Hannity in broad daylight in Times Square and Hannity would use his last breath, if it came to that, to make it clear that he had it coming, it was an accident, it wasn't Trump, he was hypnotized by one of Hillary's pedophile Svengalis, or, he wasn't shot at all, just had a rare disease that causes spontaneous wounds and bleeding. Take your pick, or make up your own. And be sure to find out what Kanye thinks,

      2. Does anybody know enough of the history to confirm or disconfirm that Cyrus' decision to allow the Jewish exiles to return to Palestine and rebuild the Temple was not done out of any particular sympathy for them, but simply applying his general (and revolutionary) policy of religious tolerance as the key to peaceful coexistence within a multicultural empire? The Cyrus cylinder, clearly aimed at a Babylonian audience, describes Cyrus as chosen by the Babylonian god Marduk to restore the city's fortunes. It's most unlikely Cyrus cared a whit about Marduk or Yahweh.

        1. You might want to take a look at

          The origins of the 'Second' Temple : Persian imperial policy and the rebuilding of Jerusalem by Diana Vikander Edelman, (London ; Oakville, CT : Equinox Pub., 2005).

          I read this a couple of years ago, along with 6-10 other books about the archaeology of early Iron Age Palestine and the history of 2nd Temple Judaism; that is, I don't remember details too well nor precisely where I read what. That said, my recollection is that Edelman specializes in diplomatic history of the Persian empire and her concern in this book is to make sense of the story of the return in light of that. That is, she identifies Persian policy as the driving force of the events described in Ezra, Nehemiah, etc, leading to the return from Babylon and the construction of the 2nd Temple. IIRC, she argues that the dating in the Hebrew scriptures is incorrect and locates many of the events around the return and the construction 2-3 generations later than their generally accepted dates, i.e., those in the canonical texts.

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