Lawyers who opine on TV have a professional and ethical duty to provide a correct analysis of settled law. Not falsely accusing a person of committing a crime is part of that duty.
In a glib interview last month with Shepard Smith, former New Jersey Superior Court judge and current legal analyst Andrew Napolitano mis-cited both federal election law and Department of Justice legal opinions while wrongly claiming that President Trump was a “co-conspirator” with Michael Cohen in two counts of federal election law violations and, thus, “is an unindicted co-conspirator.” After airing this interview on his radio program, Mark Levin demanded that Napolitano apologize to the president.
Perhaps Napolitano is upset because he had told friends he was on the president’s short list for the U.S. Supreme Court seat offered to Brett Kavanaugh. Or perhaps he just does not know federal law, since he misstated what constitutes a federal election law offense when lawsuits are settled, in Cohen’s case with alleged former paramours of then-candidate Trump.
Cohen pled to a non-crime to assuage prosecutors. The charging language in Cohen’s FEC violations was used solely to embarrass the president. Why would he plead to non-crimes? Prosecutors had Cohen by the cojones because, during a five-year period, he evaded paying taxes on “millions of dollars of income.” He also made false statements on a loan application. Cohen simply had to cut a deal to save his own skin.
Federal election law requires the offender to “know” the specific conduct is a crime. Most crimes do not allow ignorance of the law as a legal defense. The reason for the high standard in this context is that the conduct, settling a lawsuit, is legal.