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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. President Trump went

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Speaker 1: on the Twitter offensive this weekend against his former lawyer

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Speaker 1: Michael Cohen, calling him a rat. Cohen was sentenced to

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Speaker 1: three years in prison for crimes that included hush money

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Speaker 1: payments to women who said they had affairs with Trump.

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Speaker 1: Trump's current lawyer, Rudy Giuliani, made the rounds of the

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Speaker 1: Sunday talk shows trying to discredit Cohen and saying federal

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Speaker 1: prosecutors are misinterpreting campaign finance law. Here he is on

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Speaker 1: ABC's This Week. You do not pursue a President United

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Speaker 1: Stage for a questionable interpretation of the statue. That is

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Speaker 1: completely wrong. It's harassment. Joining me is Robert Mints, a

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Speaker 1: former federal prosecutor and a partner at McCarter. In English. Bob,

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Speaker 1: let's go over some of the claims that Giuliani made. First,

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Speaker 1: that these payments, which a judge sentenced Cohen to prison,

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Speaker 1: for are not criminal. Well, clearly the judge believed they

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Speaker 1: were criminal because he accepted the plea. And I think

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Speaker 1: the other major revelation last week was that not only

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Speaker 1: did you have Michael Cohen saying that he violated campaign

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Speaker 1: finance laws, but you also had the Southern District essentially

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Speaker 1: telling the judge that they had sufficient corroborating evidence to

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Speaker 1: support what Michael Cohen was saying in connection with that

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Speaker 1: guilty plea. Because prosecutors will never allow an individual to

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Speaker 1: plead guilty to a crime based solely upon their own testimony.

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Speaker 1: There has to be evidence that prosecutors can represent to

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Speaker 1: the judge they would be able to prove beyond a

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Speaker 1: reasonable doubt had the case gone to trial. So what

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Speaker 1: that means is that they had to have been other

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Speaker 1: evidence that prosecutors in the Southern District have to corroborate

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Speaker 1: what Michael was saying such that they believe they could

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Speaker 1: have convicted him if he had decided not to plead guilty. Now,

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Speaker 1: Giuliani often and Trump does as well, compares the case

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Speaker 1: against Trump to the case against former North Carolina Senator

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Speaker 1: John Edwards, who was acquitted by a jury on charges

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Speaker 1: that he had been similarly involved in hush money payments

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Speaker 1: to a woman that he'd had an affair with. Is

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Speaker 1: that affair comparison? Does that show? As Giuliani contends that

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Speaker 1: this is not a criminal act, Well, there's a couple

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Speaker 1: of responses to that. I mean, first of all, the

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Speaker 1: government brought that case as a criminal action, and the

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Speaker 1: court and the judge in that case permitted it to

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Speaker 1: proceed to the jury as a criminal action. So the

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Speaker 1: theory of prosecuting an individual for campaign finance violations for

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Speaker 1: these in kind contributions was not something that was questioned

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Speaker 1: by the court. Ultimately, the jury simply found there was

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Speaker 1: not enough evidence to show that John Edwards knew that

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Speaker 1: campaign money was being used to pay off because paramore

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Speaker 1: uh and these cases will really turn on the question

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Speaker 1: of the intent of the individual. So the question is

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Speaker 1: whether these payments were being made simply to protect somebody's

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Speaker 1: reputation or whether it was being paid uh in order

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Speaker 1: to affect the election in some way, And the answer

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Speaker 1: could be both. And as long as there is at

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Speaker 1: least part of the payment that is being done in

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Speaker 1: order to affect the outcome of the election, that will

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Speaker 1: be enough to sustain a criminal conviction, but you have

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Speaker 1: to show prosecutors have to show that the payment was

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Speaker 1: made in order to affect the election in order to

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Speaker 1: get a conviction. And also the fact that John Roberts

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Speaker 1: wasn't convicted doesn't mean that someone else who is charged

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Speaker 1: with that won't be convicted. It's it depends on the

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Speaker 1: facts of each case. Yeah, these cases are incredibly fact specific.

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Speaker 1: You're absolutely right. The theory of prosecuting somebody for having

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Speaker 1: these payments that affect their reputation but at the same

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Speaker 1: time could affect the outcome of the election, that was

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Speaker 1: not rejected by the court. So the court accepted that

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Speaker 1: as a legal theory. Otherwise the case would have been

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Speaker 1: dismissed on its face, that it never would have even

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Speaker 1: reached a jury. Instead, it really is a fact specific question,

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Speaker 1: and here are the facts, as in every case are

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Speaker 1: obviously very different. Probably the more difficult case is the

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Speaker 1: one involving the National Enquirer, because that is one in

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Speaker 1: which the payments were clearly made in order to affect

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Speaker 1: the election, at least according to the testimony not only

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Speaker 1: of Michael Cohen, but also of the National Enquirer, who

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Speaker 1: entered into a non prosecution agreement, but in order to

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Speaker 1: do so, they had to admit that those payments that

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Speaker 1: were made in order to bury the story about Karen McDougall,

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Speaker 1: a woman who allegedly had an affair with President Trump,

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Speaker 1: that that was done specifically in order to affect the

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Speaker 1: outcome of the election. But one thing I found very

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Speaker 1: interesting that Juliani said. He said that if they were

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Speaker 1: going to try to tie the president into Cohen's crimes,

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Speaker 1: that he would have charged Cohen with conspiracy, some kind

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Speaker 1: of conspiracy, and that when he was leading that federal

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Speaker 1: prosecutor's office, that that's what he would have done. Do

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Speaker 1: you think that that would be necessary to charge him

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Speaker 1: with some kind of conspiracy. It's not necessary. I mean,

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Speaker 1: it is common to have circumstances where you may have

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Speaker 1: somebody who was what's called an unindicted co conspirator, somebody

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Speaker 1: who is mentioned as a co conspirator, and there are

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Speaker 1: certain evidentiary issues that come into play when somebody is

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Speaker 1: a co conspirator versus not being a co conspirator. But

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Speaker 1: it's certainly not necessary in order to a leg that

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Speaker 1: somebody also participated or directed a crime, as prosecutors have

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Speaker 1: a legged here in the information that Michael Cohen pled

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Speaker 1: guilty to, where the reference to President Trump was clearly

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Speaker 1: individual number one. So there's a clear wreck, there's a

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Speaker 1: clear record in this case that prosecutors believed that the

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Speaker 1: president had directed these illegal payments. And now it's really

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Speaker 1: a question of what other corroborating evidence they're able to

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Speaker 1: put together to substantiate the possibility that there was this

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Speaker 1: criminal activity involving President Trump. Just about a minute here

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Speaker 1: go into for a moment Juliani's claims and and also

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Speaker 1: Trump's claims that well, he was my lawyer and so

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Speaker 1: you know I listened to him. Does that get you

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Speaker 1: off the hook? Sure. That's a very interesting legal question

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Speaker 1: because there is a defense that is used quite frequently

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Speaker 1: when lawyers were involved in criminal cases, called the advice

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Speaker 1: of counsel. So if you go in and you meet

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Speaker 1: with your attorney, and you tell your attorney the truth,

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Speaker 1: and you tell your attorney the complete truth, and you

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Speaker 1: seek legal advice, and the attorney advises you to do something.

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Speaker 1: If it turns out that what you did was illegal,

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Speaker 1: you can use as an affirmative defense to say that

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Speaker 1: I provided this information to my attorney. I thought their

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Speaker 1: legal advice, and they gave me an answer which happened

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Speaker 1: to be wrong. But I'm a title to rely on

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Speaker 1: that advice. But in this case, the president would have

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Speaker 1: to establish that he was using Michael Corn as a

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Speaker 1: lawyer and not a businessman, that he sought advice. Thank you, Bob.

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Speaker 1: That's Robert Min's from a federal prosecutor partner in m

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Speaker 1: Carter in English. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on bloomberg dot com slash podcast. I'm June Grosso.

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Speaker 1: This is Bloomberg