We previously discussed the controversy surrounding President Donald Trump’s alleged relationship with porn film star Stormy Daniels. At issue was not just the alleged affair previously described by Daniels in an interview in 2011m but a payment in 2016 of $130,000 in exchange for a denial of the affair. That payment was later the basis for a lawsuit by Common Cause alleging possible campaign finance violations. The source of the money, the lawsuit alleged, may have been campaign money and the use of such money for this purpose would have violated federal law. Now, the Trump attorney who created a shield company and anonymous identity to pay off Daniels has stated that the money was his, not Trump’s or the campaign’s. That disclosure however raises additional questions — both factual and ethical.
In an interview with NBC, Michael Cohen, said “Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.” He has also informed the Federal Election Commission that this was his money and thus not an illegal “in kind” political contribution. As a personal payment, Cohen insisted that it “was not a campaign contribution or a campaign expenditure by anyone.”
Cohen told CNN “Just because something isn’t true doesn’t mean that it can’t cause you harm or damage. I will always protect Mr. Trump.”
Cohen’s incredibly generous payment for Trump does not resolve the legal questions. If Cohen was receiving money from the campaign or Trump, the payment could be viewed as little more than a pretense or shielding tactic. Cohen curiously set up a corporate structure and used an assumed name to carry out the transaction. The use of personal funds added yet another wall between Daniels and Trump. The question will likely be asked if Cohen received a padded or inflated payment to cover the “personal” payment. Moreover, since Trump was running for president, the payment could be viewed as a form of political contribution that evaded federal election laws by the plaintiffs.
The obvious analogy would be to the prosecution of John Edwards who was also a presidential candidate. He was accused of using hundreds of thousands of dollars from third parties to cover up an affair. Those payments were alleged to be in violation of the Federal Election Campaign Act and Edwards was charged with four counts of illegal campaign contributions, one count of conspiracy, and one count of false statements. The good news for Cohen and Trump is that Edwards escaped conviction but he did not escape the criminal charge.
There is also an interesting ethical question. Cohen was representing Trump in this matter, including sending threats of defamation lawsuits. He continues to represent Trump and has even become a plaintiff himself in a defamation action.
Becoming personally involved in a case of representation through personal contributions blurs the lines of the attorney-client relationship. It also raises the aforementioned questions of indirect payments and the use of counsel to circumvent reporting laws. There is clearly a gray zone on gifts or such personal payments. However, attorneys are barred from entering into business transactions with clients. This would not be a business transaction but it shows a level of personal involvement in a legal matter that most lawyers would not view as appropriate. Lawyers struggle to keep the lines of the attorney-client relationship clear and distinct. This blurred those lines to a troubling degree. It is difficult to see where the interest of the client ends and the lawyer begins. It is not clear what Cohen was at that point: friend, lawyer, political fixer, or some ambiguous mix of the three.
The disclosure is designed to force the dismissal of the lawsuit since there is no evidence of a Trump or campaign payment. However, if the plaintiffs respond with an allegation of a quid pro quo deal, it could present a tough confidentiality fight. Common Cause could seek discovery on whether Cohen spoke with Trump or received funds meant to cover this large payment. That could end up an issue for the court to resolve. What is clear is that most judges would view this payment as irregular and concerning. That may not be enough to overcome the confidentiality protections but Cohen may have only deepened this controversy with his claim of a generous contribution.
What do you think?
It seems porn star, Stormy Daniels, continues kicking up controversy for self-promoting reasons. Did she not, once sign, a statement she did not have an affair with Trump nearly a decade ago? What has changed? As suggested, is it too impolite to ask if Daniels denies her own signature to promote this controversy for $$$$?
Daniels was on the Jimmy Kimmel show in late January, and the two compared her signatures on both the “retraction letter” and other things she has signed, and the two signatures were clearly not written by the same person, so there is good reason to doubt the authenticity of the “retraction.”
Beyond that, there’s little doubt that Daniels will push her media stardom for as many bucks as it can generate—and I say, More power to her!