Legal Analysis of Cohen Investigation

Attorney Paul Cambria spoke to WBEN both about an Orleans County man who was charged with criminally negligent homicide and about the investigation into Michael Cohen, President Trump’s attorney. The full interview is available on the WBEN website.

Orleans County case

An Orleans County man has been charged with criminally negligent homicide and reckless endangerment after running a generator underneath the bedroom of a mother and son, who died last month. WBEN asked Mr. Cambria if there is any way that this incident could have been accidental. Mr. Cambria explained that the standard for negligence is “would a reasonable individual perceive the issue under the circumstances?”

“I think anyone would at least say that there’s a possibility that someone would think if you started a generator in an enclosed pace that there would be a problem there with carbon monoxide,” Mr. Cambria said. “As far as reckless [endangerment], you have to actually perceive the danger and ignore it. So it’s a little bit more than, ‘what would a reasonable person do?’”

WBEN asked Mr. Cambria if this could be a difficult crime to prove. “From the prosecutor’s standpoint,” he answered, “I think their case would be, ‘well, would the average person believe that carbon monoxide would be given off by this machine and it would make its way upstairs?’ And, if the jury thinks that the average person would figure that out and think it was common sense, they’d have a conviction.”

“Some others may see it differently, but I think there’s actually a good possibility there that jurors could embrace that,” Mr. Cambria said.

Michael Cohen and pen register tracking

The conversation then shifted to the investigation into Michael Cohen. Federal investigators tracked Cohen’s phone using pen register tracking. Mr. Cambria explained that a pen register “basically registers the numbers called back and forth, as opposed to listening to the conversation.”

“There’s a trace and a trap, it’s called. Trap is the calls that come in, trace is the calls that go out,” Mr. Cambria continued. He explained that, in order to get a pen register from the federal standpoint, a warrant is necessary. “They have to go to a judge and persuade a judge that there’s a basis to believe that criminal action may be happening and, therefore, they’re going to take numbers in and out,” he said.

Obtaining a warrant

When asked if it is any more difficult to obtain a warrant for this than for a traditional wiretap, Mr. Cambria responded that it is about the same. “You still have to make a showing that there’s probability of criminal action. It’s a little different when you’re talking about listening to the conversations. That’s a so-called Title III, an eavesdropping warrant, and there are a lot of restrictions on that. How long it can go, the kinds of conversations you can listen to, etc. So trap and trace, they’re just trying to see who he’s talking to,” he explained. Mr. Cambria went on to say that the trap and trace is legal unless the showing of probability of criminal action was insufficient and the judge issued a warrant anyway.

Prevalence of wiretapping

WBEN asked Mr. Cambria if wiretapping is becoming less prevalent as texting and other technology becomes more widely used. “No,” he responded, “wiretaps are still useful if you want to hear what people are actually saying. Clearly, texts can show you part of what they’re saying. You know, a part of a conversation. But you’re right in the sense that I haven’t seen as many wiretaps in the last, let’s say, five years as I have in the previous 20. We used to have wiretaps all the time, especially in cases that were, like, gambling cases and so on, which you really don’t see much anymore.”

Stormy Daniels payment

Mr. Cambria was then asked for his opinion on the $130,000 payment to Stormy Daniels and the question of when the President knew about that payment. “It seems to me that Giuliani is trying to put a smile on all this,” Mr. Cambria said. “And the way he’s doing it is, it appears that the President pays Cohen a retainer. It looks like it’s $35,000 a month. And Giuliani is basically saying ‘well, it wasn’t a contribution by Cohen because the President reimbursed him.’ And I guess he’s claiming that that $35,000 a month was a reimbursement of some kind. So that would mean that it wasn’t a contribution.”

Mr. Cambria went on to say that “that still doesn’t mean that there wasn’t a violation of the election laws because, if you had any kind of activity that in some way would advance the campaign, you’re supposed to report that.”

“So the whole transaction, one way or another, the prosecutors can claim ‘well, there should have been a report.’ Whether or not it was a contribution or whether or not it was something that is an activity that needs to be reported, something else should have been done,” he explained.

Comparison to John Edwards

WBEN then asked Mr. Cambria if he thought the comparisons that are being drawn between the President and former vice presidential nominee John Edwards’ misuse of campaign donations are apt.

“It’s campaign laws, but it’s different ones,” Mr. Cambria responded. “In Edwards’ case, they used campaign money. It was clear it was campaign contribution, etc., or at least money used that was contributed. Here, I think it’s clear that Giuliani’s position is ‘look, he got reimbursed so it wasn’t a contribution. Forget it.’ And then the last question that’ll be there is ‘well, was something done to try to help the campaign?’ And, if that’s so, that should have been reported.”

Mr. Cambria explained that the violation for not reporting is “not as serious as the campaign contribution situation, but there are still rules there” and that these federal contribution rules tend to be “fairly severe.”

About Paul J. Cambria, Jr.

The chair of Lipsitz Green Scime Cambria’s Criminal Defense Trials and Appeals Practice Area, Mr. Cambria advises clients on criminal trials, criminal appeals, constitutional and First Amendment law, zoning and land use, antitrust, and professional licensing defense. He divides his time between the firm’s offices in Buffalo and Los Angeles.