Julio Gonzalez, M.D., J.D.
This week, from a published plea deal with prosecutors from the Southern District of New York (SDNY), we learned that American Media, Inc. (AMI), the National Enquirer's parent company, admitted to "making a contribution and expenditure. . . to the campaign of a candidate for President of the United States." In exchange for this admission, the SDNY agreed not to prosecute AMI for any crimes related to this contribution with the exception of any criminal tax violations that may have arisen. Although the admission allows AMI to avoid prosecution for its campaign contribution, a neutral review of the facts laid out in the addendum to the September 30th plea deal calls to question whether a contribution to any campaign even occurred.
According to the plea deal arrangement published by SDNY, AMI made a contribution to the Trump campaign when it paid $150,000 to Playboy model Karen McDougal in order to procure the rights to her story regarding her extra-marital affair with Donald Trump. Prosecutors claim that the money paid to McDougal by AMI represented a campaign contribution because it was made with the intent of influencing the results of the election and in coordination with Trump's personal attorney, Michael Cohen, and unnamed "members or agents of the Trump campaign."
The payment was allegedly made to McDougal after AMI CEO David Pecker received assurances from Cohen that he would reimburse Pecker for the transaction, and after Cohen created a shell corporation housing the money to be used to reimburse Pecker and AMI. However, despite the execution of the deal between McDougal and AMI, Pecker later called Cohen to tell him "that the deal was off and that Cohen should tear up the assignment agreement." The addendum does not explain why Pecker called off the deal with Cohen, but it does say that AMI subsequently published articles and pictures of McDougal on many of its magazines "to keep the model from commenting publicly about her story and her agreement with AMI." Consequently, neither Cohen, Trump, nor the Trump campaign ever gave the money to AMI (the parent company of the National Enquirer).
Under these circumstances it is debatable whether the actions by Pecker were contributions to the Trump campaign or a business transaction voluntarily undertaken by Pecker and independent of any political campaign. Moreover, even if there was a deal with Cohen, pending the identification of the "members and agents of the campaign" and their participation in the transaction, it appears Cohen was acting as Trump's personal attorney and not as an agent of the campaign.
And finally, being that AMI never consummated the deal with Cohen, doesn't that obviate whatever association AMI may have had with Cohen and therefore the campaign? Regardless, it certainly seems unpalatable that a campaign finance statute would be written so broadly as to capture any activity that any person undertook in support of a candidate in the absence of any participation on the part of the campaign. Such a statute would be impossible to enforce and an open affront to the protections enshrined in the Constitution of the United States.
So if AMI never consummated a deal with Cohen or the Trump campaign, was it really a campaign contribution? And if it was not, then why would AMI make a deal with prosecutors in exchange for immunity?
The answer is simple: economic and legal expediency.
Pecker knows that a legal defense of this matter would likely run in the scores of thousands of dollars regardless of whether or not he prevails. Additionally, although this transaction may be defendable, there's no telling what other things prosecutors may turn up about AMI independent of the Trump dealings that may place it in real legal turmoil. So in the end, it pays for AMI, which has no unbreakable interest in Trump, to just agree to the deal and tell prosecutors whatever they know. After all, the admission of an illegal campaign contribution on the part of the National Enquirerwill neither hurt its public standing nor its sales. AMI gets its immunity, and the prosecutors get a cooperative witness with which to pursue its case against the President. And the world moves on.
Indeed, if the AMI matter had taken place in isolation there would be little impetus for a story here. But consider the events involving Jerome Corsi.
Mr. Corsi is a journalist and an author notable for his book Obama Nation. Corsi was approached by Special Counsel Bob Mueller regarding his alleged interactions with Candidate Trump Adviser Roger Stone and Wikileaks Founder Julian Assange. These contacts resulted from Corsi's investigations of the Wikileaks July 22, 2016, publication of Hillary Clinton's emails where he noted the absence of a batch of emails between Clinton and her former campaign manager, John Podesta. According to the later-filedcomplaint by Corsi's lawyers, that observation led Corsi to contact Assange regarding Assange's possible possession of the Podesta emails and their potential publication.
As a result of this contact, Mueller suspected Corsi of possibly aiding Russia in colluding with the Trump campaign through Assange. According to Corsi's complaint, Mueller and his team then attempted to coerce Corsi into admitting that he was colluding with the Russians on behalf of Candidate Trump. In this case, however, Corsi refused to admit engaging in activity in which he was not involved and fought back by filing a lawsuit against Mueller.
But the Corsi and AMI affairs are not the only two examples of potential prosecutorial coercion in the Trump affair. General Michael Flynn is a soldier and public servant with an impeccable reputation dating back over thirty years. In 2017, Flynn served as President Trump's first National Security Advisor. In December 2016, Flynn had two conversations with Russian Ambassador Sergey Kislyak. On January 24, 2017, four days into his tenure as NSA, FBI agents approached Flynn regarding those contacts. Among the FBI agents conducting the interview was Peter Strzock, the same agent who was later disgraced because of personal texts where he openly expressed his intense bias against President Donald Trump.
Apparently, during that interview, General Flynn was asked whether he had ever spoken to Kislyak. Flynn denied such a conversation. When confronted about this discrepancy, Flynn said that he did not initially recall the contacts. And in point of fact, Flynn had reason to not be as defensive and careful as he would have been had he known the prosecutorial peril under which he had been placed. First, even though the law specifically prohibits knowingly and willfully lying to the FBI, Flynn was never placed under oath nor told that anything he said could and would be held against him; a basic tenet of prosecutorial conduct and fair play. Second, when Deputy Director of the FBI Andrew McCabe approached Flynn via a telephone conversation, he billedthe interview as being for the purpose of pursuing information regarding media coverage of the leaked memos. Even more damning was McCabe's reassurances to Flynn that the latter did not need his attorney to be present. This latter fact is perhaps the most implicative of a concerted entrapment on the part of the FBI even before one considers that then FBI Director James Comey recently observed that that he knowingly broke protocol in this case because the Trump administration was a mere three days into its tenure and "disorganized."
Based on these coercive and unethical, and likely unconstitutional circumstances, Flynn would be threatened with prosecution unless he admitted to lying to the FBI about his contacts with Kislyak and cooperated with the Mueller investigation of President Trump. After losing his house to the overwhelming legal bills and seeing his son similarly threatened by prosecutors, Flynn acquiesced. The case is presently under judicial review for possible prosecutorial malfeasance. A decision on this matter is expected this Tuesday as part of Flynn's sentencing hearing.
Then there's President Trump's former personal attorney, Michael Cohen, admittedly a category onto himself. Mr. Cohen was recently sentenced to three years imprisonment on charges of campaign finance violations stemming from payments he made to porn star Stormy Daniels to keep her from speaking regarding her affair with Trump prior to his becoming President. Once again, the legal premise under which prosecutors sought to indict Cohen was controversial. There is significant disagreement over whether Cohen was engaging in campaign activities when he made the arrangements with Stormy Daniels. His actions, although shady, could have reasonably been found to have taken place on behalf of Donald J. Trump's personal capacity and outside the purview of Trump's presidential campaign. But once again coercive prosecutorial activities come into play, and Cohen worked out a deal so to not have to defend himself in court.
In the end, Cohen was sentenced to three years in jail, largely based on his less than total candor with prosecutors. However, still unresolved is the question of whether his actions were truly illegal. Regardless, prosecutors now can use a possibly erroneous admission of guilt as another brick in their efforts to take down a sitting president.
And just this week, we learnedthat Dennis Nathan Cain's home was raided by the FBI, a protected whistleblower regarding the troubled Clinton Foundation's Uranium One dealings; a raid that may in fact be illegal.
And now we are witnessing the next phase of coercive and politically motivated prosecutions/persecutions; the use of governmental authority to intimidate targeted political rivals and their associates. In a tweet aimed at Donald Trump, Jr., incoming congresswoman Alexandria Ocasio-Cortez threatenedthe president's son with a subpoena for the offense of criticizing her in public. Her comments have appropriately raised the possibility of an ethics investigation on an elected public official who has yet to take power.
In the meantime, newly elected New York State Attorney Letitia James, a state officialand one with no prior contact with Trump or the Trump investigations has already made it her priority to investigate the President, his family, and his associates. She has been quoted as saying, "We will use every area of the law to investigate Trump and his business transactions and that of his family as well." She says this despite the fact that no scintilla of evidence has been specifically brought to her regarding potential state crimes performed by any of the individuals or entities within the ambit of the broad net which she casts; a clear sign of politically based targeting of American citizens and reminiscent of the targeted attacks undertaken by the IRS against conservative groups under the Obama administration.
The implications of these activities are immensely troubling. The tendencies towards the abuse of power and prosecutorial misconduct that these cases demonstrate represent clear affronts to our democratic system of government and a testament to the dreadful state of affairs our into which our nation will devolve should they not be checked.
There's no question that any tendency towards politically based prosecutorial misconduct must be shut down. The problem is that doing so may place any resistor or whistleblower at legal and personal risk and simply for calling it out. And that is the greatest danger of all.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and served in the Florida House of Representatives. He can be reached through www.thefederalistpages.comto arrange a lecture or book signing.
Julio Gonzalez, M.D., J.D.
Dr. Gonzalez is an orthopedic surgeon and lawyer serving as State Representative for South Sarasota County in Florida. He is the author of The Federalist Pages