78 Days to November 6
I am struck by the banner running on MSNBC this evening that there are now 78 days to November 6th — Mid term election day. The day the House of Representatives — where any impeachment motion of the President would have to emanate — may swing to the Democrats.
President Trump tweeted out his displeasure about how the Mueller investigation may negatively impact the mid terms.
It is important to note that the Department of Justice has no official policy with regard to suspending sensitive criminal investigations in the run up to elections.
Yet the NY Times is reporting that the SDNY is attempting to conclude its criminal investigation with regard to Michael Cohen by the end of August so as to not negatively impact the election. This investigation allegedly involves Bank fraud and tax fraud with regard to Cohen’s ownership of a fleet of Taxi cabs. Mr. Mueller has allegedly also handed off to the SDNY, allegations with regard to Cohen’s involvement in hush money payoffs to Stormy Daniels and Karen McDougle, alleged paramours of then Presidential candidate Donald Trump.
It is unclear whether SDNY is actively pursuing potential criminal violations of Cohen with regard to the above noted hush money payoffs. It is noted that subsequent to the release of Cohen’s tape that included Trump discussing the matter, and Trump Organization accountant Allen Weisselberg was clearly being referenced on the tape, Weisselberg was subpoenaed by SDNY.
Weisselberg has been with the Trump Organization for decades and could be a fountain of financial information with regard to the Trump Organization and any hush money payments entered into by Trump.
Weisselberg is also listed as the Treasurer of the Trump Foundation. Emails have surfaced recently with regard to Weisselberg being directed to forward Trump Foundation payments to the Trump campaign. The Trump Foundation is currently being investigated by the NY state AG and has been referred to the IRS for potential violations of Non-Profit exempt organization regulations.
Why does Weisselberg matter?
Seventy eight days to November 6.
Should SDNY want to indict Michael Cohen by the end of August so as to not disturb the campaign run up to November 6 they would have 67 days to November 6 from August 31.
And why does that matter?
Title 1 of the Speedy Trial Act of 1974 as amended August 2, 1979 and listed in Title 18 Section 3161–3174 and also set forth in the US Attorney’s manual, requires that any Defendant indicted in Federal court be brought to trial within 70 days from the date that the indictment/information is filed.
So if the NY Times is correct that SDNY wants to resolve the Cohen matter by the end of August and Mr. Cohen does not sign a cooperation agreement by August 31 and “flip,” then SDNY will have to file an indictment by August 31 that will start the Speedy Trial Act clock ticking that could very well result in a trial being slated in the very near proximity of November 6, the date of the mid term elections.
Does President Trump and his crack legal team really want the media chasing Stormy Daniels, Michael Avenatti, Karen McDougal et al in the run up to November 6 ?
It should also be noted that the Speedy Trial Act also guarantees that the Defense cannot be brought to trial in under 30 days so they can form a defense. That means should an indictment come down on August 31, Trial cannot begin before October 1
Does President Trump really want the testimony of Allen Weisselberg CFO of the Trump Organization and Treasurer of the Trump Foundation being bandied about by NY and national media along with possible internal financial documents of the above entities during the month of October?
That could happen.
Trial dates are set by Federal Judges who don’t historically concern themselves with such things as elections.
Perhaps President Trump should lay off the tweets with regard to interference in mid term elections.
And perhaps SDNY should not be in such a rush to bring an indictment against an artificial deadline and possibly miss the chance to slowly take the measure of Allen Weisselberg, and explore all the vagaries of the inner financial sanctums of the Trump Organization and the Trump Foundation. We have all witnessed the significance of bookkeeper/accountant testimony in the Manafort trial as well as the importance of document evidence in terms of determining innocence and/or guilt.
Another concern in rushing to meet a phantom deadline of August 31 is the negotiation of a flawed cooperation agreement. It is vital that any cooperation agreement negotiated with the President’s personal attorney be ironclad and fully informed so as to be completely effective. Is SDNY fully informed as to Michael Cohen’s full financial landscape? Are they aware of all the many shell companies Cohen may have used? Is SDNY fully informed with regard to all those that were making payments to Michael Cohen both onshore and off with regard to his proximity and perceived influence of the newly elected President?
It seems to this experienced onlooker that maybe both sides should take a step back here and not be in such a rush so as to avoid unintended consequences of rushing to judgement.
One way the Feds could extend any trial date so as not to conflict with the mid term elections would be to file an initial indictment on Michael Cohen on Bank Fraud and Tax Fraud charges then follow up in a month or two with a superseding indictment to include campaign election fraud charges and conspiracy to defraud the US Government with regard to both the hush money payments and Trump Foundation payments to the Trump campaign.
Superseding indictments have been used effectively in the Manafort matter. They also provide the government more time to get their evidence and witnesses together. It also provides potential witnesses and targets more time to negotiate meaningful cooperation agreements
77 days to November 6.
Martin Sheil
Retired Supervisory Special Agent IRS Criminal Investigation