Trump can’t save Cohen from these New York laws.
Michael Cohen, President Donald Trump’s personal lawyer, is potentially facing years in prison as federal agents look into payoffs to a pair of women who claim they had affairs with Trump before he won the White House.
The good news for Cohen is that Trump could pardon him if he’s convicted of violating federal campaign finance or banking laws. The very bad news for Cohen is that he could still be convicted of those alleged crimes under New York state law — and Trump would have no way to prevent him from being punished for his misdeeds.
Here’s why: New York has laws that closely mirror the federal ones Cohen stands accused of breaking. New York Attorney General Eric Schneiderman could charge Cohen with breaking those state laws regardless of whether Cohen is convicted of breaking some of the federal ones — and regardless of whether Trump issues a federal pardon. He also has a wide array of weapons to use against Trump’s attorney and confidant.
Take federal banking laws, which Cohen may have broken if he lied about the reason he got a loan to pay off one of the women. That would also be illegal in New York, which outlaws bank fraud. New York prosecutors could go after Cohen at the same time as federal prosecutors do. The only difference would be that Cohen would have no White House protection.
Schneiderman hasn’t announced any kind of investigation into Cohen, but he has been coordinating closely with the Justice Department and special counsel Robert Mueller on their investigation into former Trump campaign chair Paul Manafort. Some commentators argued that the early charges against Manafort, which left off a series of related crimes, were a sign that Mueller was leaving the door open for state prosecution.
And while many states have laws on the books related to the types of crimes federal prosecutors are investigating Cohen for, including bank and wire fraud, the New York state judicial system is uniquely well prepared to handle possible financial crimes.
“So many local law enforcement officers and prosecutor’s offices in New York have expertise in these areas that would be lacking ... in most other states,” Ric Simmons, an Ohio State University law professor who was a New York state prosecutor, told me.
Although federal prosecutors haven’t revealed the specifics of their investigation into Cohen, the Washington Post reported that the major focus of the investigation is payoffs to women in exchange for their silence on claims of affairs with Trump.
One of the payoffs, to porn actress Stormy Daniels, came directly from Cohen, who claimed he used a personal loan to gather the $130,000 he gave her.
Federal investigators are reportedly looking at whether Cohen lied to banks in order to get the money, by, for example, falsely claiming he wanted it for his extensive real estate investing or another of his businesses.
If he did, that would constitute federal bank and wire fraud. Jed Shugerman, a professor at Fordham Law, wrote that those crimes would fall under “scheme to defraud” in New York state law, which means Cohen could face state felony charges.
If the $130,000 payment was meant to help Trump win the election (something Cohen denies), it could count as a campaign contribution that was well in excess of federal limits. Beyond the possible federal crime, Cohen could also be charged with breaking New York state law if he made a false statement to a bank or to investigators about how he used the money.
Cohen also had a central role in contacts between Trump’s business and Russian officials, which could mean trouble if there was actual collusion between the Trump campaign and the Kremlin.
To take one example, Cohen was the Trump business’s point person for the Trump Tower Moscow project in 2015, even asking the Kremlin for help to get the project approved.
That deal is why Mueller reportedly looked into Cohen. Mueller brought the details of what he’d found to Deputy Attorney General Rod Rosenstein, who decided that the federal prosecutor in New York should handle an investigation into Cohen.
If Cohen used any of the contacts he made with the Russian government to try to influence the election, he could face state election fraud charges. New York state law bans trying to get a candidate elected by “unlawful means,” and working with the Russians would likely fall under another section of the law that bans interfering with the “free exercise of the elective franchise.”
And if Cohen lied as part of any filings tied to his finances or his work with the Trump Organization, or as part of any of his dealings with investigators, he could face state obstruction of justice charges.
All of which means that New York state prosecutors could go after Cohen on a variety of fronts — and that the lawyer couldn’t look to the White House for salvation.
“None of these would be subject to pardon by President Trump,” Cornell Law professor Jens David Ohlin told me.
New York state prosecutors could face one major issue with state charges. New York has a law that prevents prosecutors from charging twice for the same crime. That means that if federal prosecutors charge Cohen with a specific crime, and then Trump pardons him, Cohen could avoid state charges.
But federal prosecutors would be aware of that risk, and in the case of Paul Manafort, it appears that Mueller may have shaped his charges to leave state prosecutors space to go after him on their own.
When Mueller’s office filed charges against Manafort, they included a range of financial crimes.
But the charges puzzled some experts, because there were several obvious potential cases tied to those crimes that didn’t appear.
“There is a glaring omission in the indictment,” conservative commentator Andrew McCarthy wrote last year.
Although Mueller added new charges against Manafort in February, there’s still a range of tax and fraud charges that Mueller hasn’t used.
That could be because he’s making sure that New York state prosecutors have ammunition in the event that Trump pardons Cohen from federal charges.
Mueller has been working with Schneiderman since August, and the decision about federal charges could well be a way for Mueller to ensure that targets of his investigation can’t get off with a pardon. Even if Trump fires Mueller, New York prosecutors could proceed with cases.
The pardon issue isn’t theoretical, as the New York Times reported last month that Trump’s former personal lawyer John Dowd discussed pardons with several people charged by Mueller, including Manafort.
Thus far, Trump hasn’t suggested that he’ll pardon Cohen, although he has repeatedly defended him in public as a “good man.”
The president could easily decide to give his lawyer a get-out-of-jail-free card, at least on the federal level. Unfortunately for Cohen, Trump can’t do anything to get him out the crosshairs of New York state prosecutors.
