I don’t know the United States Code like I do the Tennessee Code. I don’t think it’s reasonable to assume Cohen’s lawyers would plead him to that charge if it weren’t a crime, unless there is something worse out there that I don’t know about. Totally possible with that sleaze ball.
Even if the lawyer is willing to do it, a judge absolutely has the power to decline a plea agreement. One situation where that could come up is where the judge hears the factual basis and does not believe it to be a crime. At a guilty plea hearing, a judge has to find the defendant guilty.
In federal court, the judge also sentences the defendant as we saw today. There’s generally not an agreement as to punishment although both sides generally know what to expect and there may be an agreement to file the filing that they made in Flynn’s case asking for a downward departure, but that’s rare, here. There are guidelines for the sentence, but in a case like this, the judge is probably not bound by them.
Tl;dr: A plea is streamlined in that the parties have agreed to what the facts are, but the judge still has to agree that the facts constitute a crime. The judge also didn’t give Cohen probation and his sentence while not impressively long was not lenient.
This judge and this prosecutor and cohen’s attorneys are surely more informed about the specific facts of this case than somebody who went on TV and said it wasn’t a crime.
There is a theoretical aspect to the law that would explain the discrepency. For instance, in some states, if 2 men go to commit a robbery and one of them gets killed, the other is liable for felony murder. In Tennessee there is a case that says that’s not Tennessee’s theory of felony murder. But that case is old and in 1989 TN rewrote the criminal statutes. To my knowledge, there hasn’t been a case to relitigate the issue. A zealous prosecutor could bring a case on those facts, though, and I would feel confident enough to go on TV and say I don’t think it’s a crime.
I certainly wouldn’t advise my client to plead guilty to such a dubious charge, Unless I didn’t believe in the argument that it wasn’t a crime, or there was a good basis to believe something worse would happen to the client if he didn’t plead. Typically, that would mean a different charge, the way the federal system is set up with the discretionary sentencing. As I said, that’s believable with Cohen, but he still has to be guilty of something for this scenario to make sense so still not a witch hunt as to him.
All of that assumes assumes that the prosecutor is crooked enough to allow such a thing which, with respect to Mueller, is still a Fox News Fairy Tale. There’s no proof to suggest that he is corrupt.
In my mind, the biggest remaining question is whether anything can be proven as to the president that merits impeachment. Personally, I want him impeached and would toss him out if the Oval for conspiracy to break the speed limit. Being objective, though, I don’t think campaign finance violations gets it done. As much as it’s been lampooned, Rand Paul has the correct measure of that. I would favor impeachment if collusion or obstruction can be proven and (again, biased) there’s not a doubt in my mind that he intended to obstruct justice by firing Comey.
With respect to collusion, I think the attempt matters more than whether it changed the results of the election. I don’t think the latter has a snowballs chance in hell of being proven.
Just my candid opinions on it.