Judge’s Ruling on Unsealing Cohen Documents Signals Big Trouble For Trump

Donald Trump should be very worried about a judge’s ruling on a seemingly peripheral matter that never even mentions his name.

On Thursday, Federal District Judge William H. Pauley III ruled on a motion by a number of media organizations to unseal documents and other materials relating to the FBI’s execution of a search warrant on Michael Cohen’s home and office last April.

Judge Pauley’s Order was a split decision.  It granted the motion to unseal some of the materials for release to the public, but not all of them.

It’s not the documents that will now be disclosed pursuant to Judge Pauley’s Order that portend trouble for Trump.

It’s the ones that won’t be disclosed and, more importantly, the judge’s reasoning for keeping them under seal.

The information sought by the media organizations relates to the FBI’s warrant to search Cohen’s home and office, and the materials the FBI seized when it executed the warrant.  Most of the materials relate to criminal charges to which Cohen pleaded guilty last August, including (1) tax evasion, (2) false statements to financial institutions, and (3) campaign finance violations.  Some relate to conduct by Cohen that did not result in criminal charges.

Although the ruling is carefully crafted and nuanced, in a nutshell the Court granted the motion to unseal most of the materials relating to Cohen’s tax evasion, his false statements to Congress, and his conduct that didn’t result in criminal charges.

But the Court denied the motion to unseal the materials relating to the campaign finance violations.

The story here lies in why the Court refused to allow public disclosure of the campaign finance documents. 

Judge Pauley refused to unseal the campaign finance materials because disclosure could interfere with an ongoing government investigation into the campaign finance crimes. 

To begin with, disclosure of the materials could identify not only witnesses who were cooperating with the Government, but also “uncharged individuals” who continue to be “subjects” of the campaign finance investigation:

“[T]he search warrant applications and affidavits catalogue an assortment of uncharged individuals and detail their involvement in communications and transactions connected to the campaign finance charges to which Cohen pled guilty.  According to the Government’s ex parte submissions, these individuals include those cooperating with the Government, those who have provided information to the Government, and other subjects of the investigation.”

The Court found that disclosure of that information would reveal too much about the ongoing investigation:  

“[W]holesale disclosure of the Materials would reveal the scope and direction of the Government’s ongoing investigation.  It would also unveil subjects of the investigation and the potential conduct under scrutiny, the full volume and nature of the evidence gathered thus far, and the sources of information provided to the Government.”

Lest there be any doubt, Judge Pauley described the harm that could come from revealing all of that information to the public:

“[T]he disclosure of such information may enable uncharged individuals to coordinate or tailor their testimony and interactions with the Government. . . . And if the past is any prologue, unmasking those who are cooperating with the Government could deter further cooperation with the investigation by ‘subjecting those individuals to witness tampering, harassment, or retaliation.’”

Unpacking Judge Pauley’s rationale spells big trouble for Trump, and possibly others in the Trump organization.

Who are the “uncharged individuals” who continue to be “subjects” of the “ongoing” investigation?

That’s not a particularly difficult question to answer because there are only a few key players in Cohen’s campaign finance violations, which were described in detail in Cohen’s plea agreement and the government’s “Information.”

Not Cohen, the individual who coordinated the hush money payments at the core of the campaign finance violations.  He’s already been convicted and sentenced.

Not Trump’s CFO, Allen Weisselberg, who disguised the hush money payments by falsely recording them as legal expenses paid by the Trump Organization.  He’s been granted immunity by the prosecutors in the Southern District of New York in charge of the Cohen campaign finance prosecution.

Not Trump’s smarmy friend and media protector David Pecker, who used his National Enquirer publication to help Cohen launder the hush money payments by pretending they were payments for story rights and future services.  Pecker has obtained a non-prosecution agreement in exchange providing testimony in the SDNY investigation.

Who, other than Trump himself, does that leave? 

Others in the Trump Organization?  Maybe, but not likely. Prosecutors don’t grant immunity to major players in a criminal scheme in exchange for testimony about people lower in the food chain.  Allen Weisselberg is right at the top of the Trump Organization, just below Trump himself, and maybe Trump’s elder children.

And what about Judge Pauley’s provocative use of the phrase “if the past is any prologue” in setting out the risk that individuals unmasked as cooperating with the investigation could be subjected to “witness tampering, harassment, or retaliation.”

Who, other than Trump (and maybe his PR lawyer Rudy Giuliani) has a history of harassing and threatening retaliation to witnesses, whom Trump calls “rats,” who have the temerity to cooperate with government prosecutors?

Short of directly naming Trump as the subject of an ongoing investigation, Judge Pauley’s Order could hardly have painted a bigger legal target on Trump’s back.

Of course, we didn’t really need Judge Pauley’s Order to tell us that Trump was involved up to his eyeballs in the campaign finance violations.  The federal prosecutors in the Southern District of New York have already done so by alleging that Trump, aka “Individual 1,” affirmatively directed Cohen’s campaign finance violations. 

But Judge Pauley’s Order is nevertheless highly significant in that another branch of the government, a judge of the federal District Court, has now seen the documentary (and possibly electronic) evidence and reached the same conclusion reached by the federal prosecutors in the Cohen case: there’s credible evidence implicating Trump in Cohen’s campaign finance violations.

No wonder Trump has hired all those lawyers.  He’s going to need every one of them.