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Michael Cohen Investigation


DanTheHorn

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14 minutes ago, kevwun said:

It's going to be someone above reproach so they are going to have to come up with some deliciously ridiculous arguments.

And the GOP will repeat those deliciously ridiculous arguments with no shame.  And hell they'll add in a few crazy Alan Dershowitz quotes for good measure.

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2 minutes ago, lemonlime said:

And the GOP will repeat those deliciously ridiculous arguments with no shame.  And hell they'll add in a few crazy Alan Dershowitz quotes for good measure.

They'll find out that his wife's brother's former neighbor's aunt once donated $100 to a Democratic school board nominee and claim that he's hopelessly biased and the whole thing is a sham.*

 

*For gender equity purposes, feel free to switch out him/her in the above sentence.  

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3 minutes ago, Hugo Stiglitz said:

I might have this wrong but it appears as if Trump is asking the judge in the Cohen case if he can obstruct justice?

Pretty much--he doesn't see anything wrong with parsing through evidence for his own gain.  Think there's something pretty damning there if he's been this insistent on it.  

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Here's a quick summary from a pretty good blog on the implications of asserting one's fifth amendment right in a civil proceeding. It's as to Texas law, but the Texas rules of evidence are rather analogous to the federal rules, and I expect that the implications in a federal civil case are similar (the author even cites to federal cases on the matter; I confess that I've only had this come up in state court cases, never in a federal case).  His BLANKET assertion of the fifth amendment right may not stand up, and it has negative consequences just the same.

Quote

First of all, any party or witness in a civil case may be called to testify, whether they are facing criminal charges or not.  Second, witnesses in civil actions do not enjoy an unfettered right to refuse to answer questions on Fifth Amendment grounds. Finally, in a civil case it is perfectly permissible for a judge or jury to infer that a witness is guilty of wrongdoing if they invoke the Fifth Amendment privilege against self-incrimination in response to a question.

.....

when a witness in a civil case invokes the protections of the Fifth Amendment, the inquiry does not simply stop there. It is well-settled law in Texas that when a witness in a civil case invokes the Fifth Amendment, the assertion of this privilege is subject to scrutiny by the judge, who will determine whether the refusal to answer is made in good faith and is justifiable under the circumstances.  Such an inquiry is a delicate undertaking, because the witness cannot be compelled to disclose the very information that the privilege protects, but in order to uphold the privilege, it must be shown that answering the question is “likely to be hazardous” to the witness.

.....

Once it has been established that the witness has a right to refuse to answer a question, what happens next?  Simply stated, the judge or jury can infer that a witness committed the very crime that he was protected from testifying about.[2] But infer is all they can do. Invoking the Fifth Amendment does not give rise to a presumption of culpable conduct nor is it, standing alone, sufficient evidence to prove wrongdoing. Courts have routinely held that a Fifth Amendment claim of privilege will not substitute for other relevant evidence, pointing to the language of the U.S. Supreme Court case which first recognized the negative inference concept, that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” 

The failure to offer probative evidence in addition to the assertion of the Fifth Amendment privilege leaves the fact-finder with only an inference, and because an inference is considered nothing more than a mere suspicion, the inference in and of itself does not constitute more than a scintilla of evidence. Therefore, without more evidence, the negative inference which is permitted in these circumstances will not support a finding of fact or raise a fact issue which precludes summary judgment.

.....

The bottom line is that in a civil case, the invoking of the Fifth Amendment is powerful evidence – juries instinctively understand that in order for a person to claim the right not to self-incriminate, there must have been incriminating conduct to begin with. When instructed by the court that they may consider this as evidence of guilt, most juries do not hesitate to do so.  So, while the Fifth Amendment claim may be used as the nail in the coffin of your opponent’s case, there will be no burial without something more.

So, summary:

His invocation of the Fifth Amendment may be too broad, and if the plaintiff asks for an inquiry, the judge may not accept it as to all testimony/issues.

His invocation of the Fifth Amendment allows for an INFERENCE that the witness committed the crime at issue (which is often the same set of acts that give rise to civil liability).  The inference alone is NOT enough...but add some actual evidence on top of it, and it's pretty damned powerful.

Edited by Brisketexan
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It's an interesting decision to invoke the 5th in a civil case since that CAN be used in the decision making process by the jury. I get that he won't be held in contempt since a statement in the civil case could be used against him in the criminal case (McCarthy v. Arndstein), but it really fucks up this civil case which will lead to even more shit tumbling out down the line. Man, he's a shitty lawyer lmao

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2 minutes ago, Captainant said:

It's an interesting decision to invoke the 5th in a civil case since that CAN be used in the decision making process by the jury. I get that he won't be held in contempt since a statement in the civil case could be used against him in the criminal case (McCarthy v. Arndstein), but it really fucks up this civil case which will lead to even more shit tumbling out down the line. Man, he's a shitty lawyer lmao

Asserting da fif in a civil case is a rear-guard action.  It's a tactical retreat, AT BEST.  If you're in a position where the BEST course of action for you is to invoke da fif in a civil case....you're in a bad position.

hwmbe.jpg

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13 minutes ago, Captainant said:

It's an interesting decision to invoke the 5th in a civil case since that CAN be used in the decision making process by the jury. I get that he won't be held in contempt since a statement in the civil case could be used against him in the criminal case (McCarthy v. Arndstein), but it really fucks up this civil case which will lead to even more shit tumbling out down the line. Man, he's a shitty lawyer lmao

Not just the jury.  The judge on summary judgment, as long as there is a minimal amount of other evidence supporting the conclusion drawn from the adverse inference (or something like that, I forget).  

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2 hours ago, lemonlime said:

And the GOP will repeat those deliciously ridiculous arguments with no shame.  And hell they'll add in a few crazy Alan Dershowitz quotes for good measure.

It could be Mike Pence and the rank and file would immediately turn on him.

(OK, it couldn't ACTUALLY be Mike Pence, but the point stands.)

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3 hours ago, TwiceHorn said:

So she did appoint a Special Master then?

Nothing is final yet, but my crystal ball says the Court will allow for simultaneous review by the government and by Cohen/Trump/Trump Org. I also think it likely the Court will appoint one of the retired SDNY magistrates as opposed to any of the former prosecutors who worked with Giuliani. If that’s the case it won’t matter if Trump undertakes the priv review himself- he won’t be able to prevent the government from using the documents unless or until the Special Master agrees that the document is privileged. My prediction- not much will be privileged as I don’t think Cohen was providing much, if any, legal advice. Remember the government already said they’ve reviewed a lot of emails from alternative sources and concluded there were *zero* privileged communications. 

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6 minutes ago, Pig Bellmont said:

Nothing is final yet, but my crystal ball says the Court will allow for simultaneous review by the government and by Cohen/Trump/Trump Org. I also think it likely the Court will appoint one of the retired SDNY magistrates as opposed to any of the former prosecutors who worked with Giuliani. If that’s the case it won’t matter if Trump undertakes the priv review himself- he won’t be able to prevent the government from using the documents unless or until the Special Master agrees that the document is privileged. My prediction- not much will be privileged as I don’t think Cohen was providing much, if any, legal advice. Remember the government already said they’ve reviewed a lot of emails from alternative sources and concluded there were *zero* privileged communications. 

I suspect your crystal ball is largely correct.

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Reportedly, Trump US Atty appointment to SDNY, Jeff Berman, recused himself from the ongoing Cohen investigation per input from DoJ officials in DC.  The specifics of the conflict of interest weren't reported, but Berman was a Trump donor, served on the Trump transition team, personally interviewed with Trump for the SDNY gig, and is a former law partner of Rudy.

Turns out Berman is an interim appointment whose term is set to end next week in the midst of the mushrooming ordeal involving Trump's consigliere.  Based on what we know about how Trump operates and his feelings about Sessions recusal from the Trump/Russia investigation, there is concern that it presents an opportunity for Trump to appoint a new SDNY US Atty who wouldn't have to recuse and could potentially lean on things.

That possibility got squelched today.  Federal judges for the District Court of SDNY made Berman's appointment permanent.  Judges can do that evidently.  That's a key firewall against meddling in the Cohen investigation that will remain intact. 

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13 hours ago, Captainant said:

It's an interesting decision to invoke the 5th in a civil case since that CAN be used in the decision making process by the jury. I get that he won't be held in contempt since a statement in the civil case could be used against him in the criminal case (McCarthy v. Arndstein), but it really fucks up this civil case which will lead to even more shit tumbling out down the line. Man, he's a shitty lawyer lmao

Considering the nature of the civil case, it seems like just saying "fuck it Stormy, talk all you want" would be the best course of action.  I know there was some suit/countersuit shit, but I would think running away from enforcement of the NDA would an easy decision at this point.  I don't see why you would risk criminal jeopardy over a civil case which 1) pretty much everyone already assumes what she has implied, 2) nobody is surprised by it, 3) there are no financial damages you owe. 

 

Edit to add: I assume Stormy's lawyer will be able to triple his billing rate for the next couple of years.  The guy gets a case which his client admits she was paid for her NDA, and he's about to get everything she wanted. 

Edited by Tuco
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7 hours ago, triplehorn said:

Reportedly, Trump US Atty appointment to SDNY, Jeff Berman, recused himself from the ongoing Cohen investigation per input from DoJ officials in DC.  The specifics of the conflict of interest weren't reported, but Berman was a Trump donor, served on the Trump transition team, personally interviewed with Trump for the SDNY gig, and is a former law partner of Rudy.

Turns out Berman is an&nbs

That can't be correct.  That position needs Senate confirmation.  Maybe they indefinitely extended his interim term, but that wouldn't affect the Cohen investigation because he's not running it and Trump has always had the ability to replace him at any time.  The firewall is Senate confirmation. 

Edited by Mojo Hand
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7 minutes ago, Pig Bellmont said:

Considering today’s hearing where a federal judge is considering whether it’s necessary to appoint a special master to review “thousands” of privileged communications, this has to be the dumbest thing he could have said. Seriously, so so dumb 

What a fucking dumbass.  And didn't he claim before that Cohen wasn't representing him with Stormy Daniels, but rather was acting on his own with her? 

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20 minutes ago, Pig Bellmont said:

Considering today’s hearing where a federal judge is considering whether it’s necessary to appoint a special master to review “thousands” of privileged communications, this has to be the dumbest thing he could have said. Seriously, so so dumb 

I think any competent lawyer would require Trump to tattoo "Stop Talking!" on both of his hands. 

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16 minutes ago, GhostOfTomJoad said:

It's mind bottling how stupid DOTUS is. He's just intentionally ignoring directions from his attorneys, aides, Ivanka,  et al to keep his mouth shut, but he of course knows better than them. 

What's truly amazing is that his supporters can't see it. He openly contradicts himself time and time again and they still can't grasp that the man is full of shit.

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12 minutes ago, GhostOfTomJoad said:

It's mind bottling how stupid DOTUS is. He's just intentionally ignoring directions from his attorneys, aides, Ivanka,  et al to keep his mouth shut, but he of course knows better than them. 

He's done it his whole life without consequence. 

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1 hour ago, Mojo Hand said:

That can't be correct.  That position needs Senate confirmation.  Maybe they indefinitely extended his interim term, but that wouldn't affect the Cohen investigation because he's not running it and Trump has always had the ability to replace him at any time.  The firewall is Senate confirmation. 

I'm sure there's more details to the law, but a Cohen-recused Berman stays for now.

 

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59 minutes ago, Pig Bellmont said:

Considering today’s hearing where a federal judge is considering whether it’s necessary to appoint a special master to review “thousands” of privileged communications, this has to be the dumbest thing he could have said. Seriously, so so dumb 

"Counselor, just this morning your client said on global TV that Mr. Cohen in fact only handles a 'tiny, tiny little fraction' of his legal deals - so again, how am I to justify involving you in the process of reviewing documents with respect to an attorney who handles only a tiny fraction of your client's business?"

50 minutes ago, Mojo Hand said:

What a fucking dumbass.  And didn't he claim before that Cohen wasn't representing him with Stormy Daniels, but rather was acting on his own with her? 

And yes, this.  He is a lying liar who lies as regularly and easily as most people breathe.  He says "I was never there."  A day later "Yeah, I was there, but I didn't do anything."  Wait till tomorrow, he'll say "yeah, I was there, and I did something that would be a crime if anyone else did it, but I'm the president, so it's okay."

The dumbest people on the planet are the people who believe a SINGLE word that comes out of Trump's mouth, ever.  Turns out, we've got tens of millions of those dumb people right here, and they vote.

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There needs to be a Special Master so that the case is handled as by the book as possible.  Don't give them anything legitimate to gripe about. Make them run down the character of talented and honest career public servants in desperation instead.

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4 minutes ago, Brisketexan said:

"Counselor, just this morning your client said on global TV that Mr. Cohen in fact only handles a 'tiny, tiny little fraction' of his legal deals - so again, how am I to justify involving you in the process of reviewing documents with respect to an attorney who handles only a tiny fraction of your client's business?"

“Because although Mr Cohen only handles a tiny slice of my client’s business, that tiny slice represents a substantial majority of the legal work Mr. Cohen performs.  Most of his seized files relate to my client and are protected by a privilege owned by my client.” 

The posters I typically agree with are doing a lot of overreaching lately.  Trump is shady as fuck.  But don’t overplay your hand.  

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