The Ultimate Loser In The Stormy Daniels Saga Could Prove To Be Trump’s Lawyer

donald_trump_president-elect_portrait_croppedBelow is my column in USA Today on the expanding litigation over the Stormy Daniels controversy and specifically the precarious ethical position for Trump’s longtime counsel, Michael Cohen.  One interest development was the move by Daniels’ counsel (and my former research assistant) Michael Avenatti to get a new judge in the Daniels case.  Avenatti argued that it was inappropriate for the case to be heard by Los Angeles Superior Court Judge Elizabeth Feffer because she is seeking a federal judgeship from President Trump.  The move was surprisingly successful and the case was transferred to Judge Howard Halm.  Like Feffer, Halm was appointed by former California Gov. Arnold Schwarzenegger (R).

Here is the column:

The scandal involving porn star Stormy Daniels and President Trump is now a matter for a court of law. Daniels is seeking a declaration that the agreement drafted by long-standing Trump attorney Michael Cohen is null and void. Cohen, in the meantime, is seeking to bar her lawsuit and stop her from discussing her relationship with Trump — and might even try to block a 60 Minutes interview she did with Anderson Cooper.

The validity of this bizarre agreement has only become murkier with time. However, the one clear loser is likely to be Cohen, whose conduct raises serious ethical concerns. Cohen, who recently proclaimed that “I will always protect Mr. Trump,” may have to put his own bar license at risk to do precisely that.

Let’s start with this curious document entitled “Confidential Settlement Agreement and Mutual Release; Assignment of Copyright and Non-Disparagment (sic) Agreement.” Exhibits 1-2 in the lawsuit: Cohen created the shield company Essential Consultants LLC and adopted an anonymous identity to pay off Daniels. Indeed, the agreement protected “David Dennison” or “DD,” also known as Donald Trump. As for the other party, “PP,” she is “Peggy Peterson” aka Stormy Daniels, also known (legally) as Stephanie Clifford. The problem is that David Dennison aka DD aka Trump never signed the agreement. However, Cohen signing as EC LLC did execute the agreement.

It is not clear whether Cohen honestly thought this incompetent and clumsy arrangement would work. If so, it falls in the same level of legal advice as telling a client, “If we keep our eyes shut, no one can see us.”

That does not mean that it will not be ruled binding on Daniels, who did accept $130,000 for the agreement. Daniels argues that Cohen himself nullified the agreement by speaking publicly, and that it was invalid due to Section 8.6, which states that the parties understand “this agreement, when signed by all parties, is a valid and binding agreement.”

Trump never signed under either his pseudonym or his real name.

Cohen’s recent moves only add to the confusion. He filed a complaint with a private arbiter under the agreement and secured a temporary restraining order to prevent Daniels from filing her lawsuit. She ignored the order and may have the stronger legal argument. Cohen filed the complaint on behalf of EC LLC. The agreement, however, only refers to arbitration options for Trump and Daniels, not Essential Consultants. Once again, it is not clear who Cohen is representing because EC is essentially Cohen.

This only magnifies the lingering unanswered question: What was Cohen when he was doing this work? A friend, a fixer, or a lawyer? Just having to ask that question bodes poorly for him.

A licensed attorney in New York since 1992, Cohen has painted himself into an ethical corner. When Trump was accused of a campaign-finance violation over the Daniels payment, Cohen insisted that “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 later added that the money was his own, and that it came from his home equity account.

Cohen is utterly exposed as a result of his effort to insulate Trump. First, if Cohen is speaking truthfully that Trump had no knowledge of the payment or the specific conditions, he signed a document on behalf of a client (and ostensibly binding the client) without either consulting with his client or securing his consent. That would be a clear ethical breach.

Cohen reportedly complained that the delay in paying off Daniels was due to the fact that he could not reach Trump and later complained that Trump never reimbursed him. Those statements, if true, are hopelessly confused. If he needed to speak with Trump (and did not) his own admission could be used against him. Rule 1.4 of the New York Rules of Professional Conduct require conferral and communication with a client on such agreements.

Moreover, if he did not have Trump’s consent, his representations to Daniels could be alleged to be false and potentially fraudulent. If he expected reimbursement, his statements to the Federal Election Commission and others are factually and legally questionable. Rule 4.1 states, “In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.” Likewise, Rule 8.4(c) states that an attorney shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

Then there is the problem with an attorney raiding his home equity account to cover costs for a client. Attorneys are not supposed to intermingle personal and client funds. Cohen used a “” email account to arrange this transaction, but said he used his own money to try to silence a potential embarrassment for a client.

Rule 1.8(e) states clearly that “a lawyer shall not advance or guarantee financial assistance to the client” except contingency cases (not applicable here) or indigent client cases (certainly not applicable here).

There are also allegations that Cohen coerced or badgered Daniels into signing this agreement. That raises a host of other ethical and legal concerns, including Rule 3.4 on fairness to other parties (which includes the withholding of material information and using threats against an opposing party).

Finally, Cohen is reportedly shopping a book about his representation of Trump. That could run afoul of Rule 1.8 on conflicts of interest in negotiating literary or media rights on subject matters of representation.

Cohen appears to have drifted well outside the navigational beacons for most lawyers in securing the Stormy Daniels deal. In the end, the real identity of Dennison and Peterson might not matter as much as who Cohen was, and what he was doing in the middle of this muddle of his own creation.

Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University, where he teaches constitutional and tort law. Follow him on Twitter: @JonathanTurley

You can read diverse opinions from our Board of Contributors and other writers on the Opinion front page, on Twitter @usatodayopinion and in our daily Opinion newsletter. To respond to a column, submit a comment to


74 thoughts on “The Ultimate Loser In The Stormy Daniels Saga Could Prove To Be Trump’s Lawyer”

  1. George Washington University faculty who express the opinion that money in politics is not the problem will want to read the Huffpo article about Pence’s Chief of Staff who is a very busy bee in the Koch colony.

  2. Stormy is just a distraction. IE all the nonsense written here. People wake up who cares about stormy. The world is on fire WAKE UP !!

  3. The bottom line is that “free speech” is no longer “free.” There is, indeed, a price to be paid, especially if you are not speaking about something meeting with the approval of the Leftist agenda. Notably, U of P claims that Professor Wax’s statements were “inaccurate,” but utterly fails to provide a scintilla of fact contradicting her statements. Professor Wax’s statements at issue were purported to be “facts,” not opinions. Facts are facts. So what are the “real” facts, if Professor Wax’s facts were inaccurate. U of P is silent. So U of P is lying by omission. U of P should fess up or shut up.

  4. Trump has the worst lawyers. Daniels has a great lawyer. Mueller has the best lawyers of all.

    Good news today is Treasury has sanctioned a number of Russians who were also indicted by Mueller last month. So part of the executive branch is now visibly in synch with the Mueller investigation. Attempted assassinations by the Kremlin using nerve gas got someone’s attention.

    Nunes memo was a flop. Republicans on House Intel used the, “See no evil, hear no evil, speak no evil” model of sham investigating. Gowdy and Conaway now acknowledge that the Russians were attempting to help Trump and harm Clinton.

    The only reason that Trump is firing people is to bring in those who will swear total loyalty to him – toadies – in order to protect him in the coming days. It’s a dangerous time.

  5. Jeesh JT, you just laid out the whole prosecutor’s indictment against Cohen.
    They don’t even have to think. Just cut and paste your article into an indictment.

    Talk about falling on one’s sword to protect another.
    He would have been in a far better position had he simply said he was doing all this for Trump as a friend, and not in any way a heavily state regulated attorney.

  6. Cohen’s having advanced money on behalf of Trump would not violate RPC 1.8(e). This rule says “While representing a client IN CONNECTION WITH CONTEMPLATED OR PENDING LITIGATION, a lawyer shall not advance or guarantee financial assistance to the client, except that:…” (“Emphasis added.”) Stormy Daniels was not threatening to sue Trump at the time. Trump was merely buying her silence.

    I hate Trump as much as anyone but I find that some legal analysis is very slanted by anti-Trump sentiment.

  7. Lest we forget- an attorney’s public claim of authorship of a client’s damning tweets. “Good people”, hired by Trump.

  8. You know, this entire episode could drag the noble profession of lawyering into disrepute …..

  9. Fake name = Fake news. If her name is not Stormy Daniels then why do you call her that name on this blog? What is her friggin name anyway? Is it Loose Tits Sloppy Twits?

    Fake news Turley for calling her Stormy. And so what if she is a “stripper”?

    1. Do you just sit around all day with your fingers in your ears and yell, NA NA NA NA, I don’t hear you. Just like Trump, if you don’t like what you hear it’s fake news.

      1. No I cannot sit because I do not have an arse. I cannot say NA NA NA because I cannot speak because I do not have a tongue. The nun cut it off when she crossed her legs. There is fake news out there and you can ignore it. Like this woman Stormey Cloud Whatshername. You men out there who bitch about her are just jealous because you do not have a good looking stripper.

      1. His went by the stage name of, Stormy B, when he performed at gay bathhouses in the Village. That’s why.

          1. Olly being ex Navy, I am not surprised by your familiarity with gay bathhouses.

              1. The Chief pats bam bam’s fanny whenever he likes one of bam bam’s posts.

  10. After reading all the apCray in this blog over the past month about the President of the United States, I have been duly moved by these facts to state that in the next election I will vote for Trump and will do so early and often. Screw you loose cannons. Stick your res up your ipsa.

    Vote For Donald!

  11. To all of you who have accused Trump of being connected to the mob or in bed with the Russians, listen up–the mere fact that Stormy isn’t wearing concrete concrete boots, at the bottom of the Hudson, ought to prove, once and for all, that Trump is not being protected by the mob. Not being protected by the Russians. If he were, Stormy would have been silenced, one way or another, way, way before now. Her brash and unbridled freedom, to act up and challenge the President, flies in the face of any notion that Trump is propped up or protected by by nefarious sources. Trust me. When these forces feel threatened–either directly or through a proxy–like Trump–people responsible for thst threat disappear and are never heard from again. The fact that we have the daily Stormy circus, in every paper and on every news channel, proves that Trump is not in bed with these sinister characters. If he were, Stormy would’ve been toast by now.

    1. Above, part 2: In which bam bam once again praises Trump for declining to cause the death under suspicious circumstances of Stormy Daniels. So it’s official, now. There is no higher praise that bam bam can give to Trump anymore than that Trump has not yet been implicated in anyone’s death under suspicious circumstances. And to think that just yesterday Mespo praised bam bam for being a thought-provoking gal, because bam bam had proclaimed that it takes a BS artist to know a BS artist. Plain and simple. Indeed. Clearly and distinctly bam bam knows Trump.

      There’s a curious new wrinkle to bam bam’s most recent gambit, though. And that is the overly simplistic notion that, so long as Stormy Daniels lives, Trump cannot possibly have laundered any dirty Russian money, nor committed bank fraud, nor tax fraud. Where is the logical connection between that antecedent and that consequent? Wish fulfillment? Special pleading? Grasping at straws? Razzle dazzle, perhaps. Maybe Turley is right. So long as you all keep your eyes closed, no one will be able see you.

      1. Less time spent defending mall lechers would free up bam bam’s time, to learn logic.

        Defending the indefensible, “He doth protest too much”.

      2. Pretty simple notion–try to follow, Diane, or whatever your name of the day may be–those who are mobbed up by, purported, criminals and gangsters. . .something with which Trump has been accused, mercilessly, on a daily basis. . .don’t have women, running around, squawking about threatening them. It doesn’t happen. . .not to the truly powerful figures with mobster and underworld connections. That is reality–something with which you are woefully unfamiliar. I don’t wish harm on Stormy. That is not what I stated. I simply attempted to point out that if some rogue dame decided to threaten someone with all of these, alleged, nefarious connections, she wouldn’t be around for long enough to do so, as evidenced by those deciding to spill the beans on the Kennedys or Clinton. Those women were silenced, one way or another. Yes, Diane. This is the big, bad world, where those associated with mobsters–Russian or otherwise–need not worry about pesky bimbos, like Stormy. The mere fact that Stormy lives, breathes and exists to challenge Trump, discredits the notion that he is connected with these Russian oligarchs or mobsters. If Trump was viewed as such a valuable and crucial ally to these bad actors–someone who fulfilled their needs and wishes–they, not Trump, would have silenced Stormy by now. No, it wouldn’t need to be directed by Trump, as you have falsely claimed. She would have been silenced to comport with their own interests. Silenced to promote their own self interests. Capice? If Trump had these nefarious characters in his back pocket, Stormy would’ve remained silent and hidden in her trailer park, sufficiently warned to keep her herpes encrusted lips shut. Don’t like my theory because you are incapable of comprehending it? As Stormy would probably say, too f’ing bad.

        1. bam bam said, “those who are mobbed up . . .don’t have women, running around, squawking about threatening them.”

          How many of those people who were ever mobbed up served as POTUS during the period of time in which they studiously declined to be implicated in the death under suspicious circumstances of the women who threatened them with sexual squawking???

          How does the continued existence of Stormy Daniels in this vale of tears negate the possibility that Trump may have laundered money for the Russians???

    2. I don’t think the Stormy episode rises to the seriousness (to the Russians) of causing direct Russian intervention in the US, via a rubout. The Russians have played that game in the UK and maybe elsewhere in Europe, but I don’t think they have started it here (yet).

  12. Obviously Professor you are not impartial in this matter with your association with Daniels attorney. You also keep finding any way possible to attack Dule elected President Donald Trump.

    You sure you’re not also a consultant for Mueller on his out of control, plan to remove by coup a duly elected President.

    This whole Special Counsel is illegitament as it is totally a Scam concocted by Hillary/Podesta/Obama and the Obama Administration inculding their corruption of DOJ, FBI, DNI, CIA, Dept of State, also including unmasking of Trump officials “inadvertently” recorded phone calls by the National Security Advisor and others. Even the Australian who talked to Papadopoulos in a London bar has connections to the Clintons.

    1. Rod Kirkpatrick, you cannot possibly be as incomparably stupid as you are pretending to be.

      1. Yes he can, for proof see Allen/George, PCS, Karen S, and a host of others. Remember when people show you how stupid they are, believe them.

        1. If I accepted their pretense of stupidity at face value, I would be ethically obligated to pity them. I cannot bring myself to pity them. Ergo, they simply must be maliciously pretending to be nincompoops.

    2. Who is “Dule”? Did he elect the president? Maybe you mean Bob Dole? Or Dole pineapples?

      But typos aside, your comment also suggests the belief that a “duly elected President” can do no wrong, can commit no crime. That any such transgressions were and continue to be entirely forgiven or excused, by the fact of the election win. Is that how you feel?

    3. Why, it seems as if you’ve shined the disinfecting sunlight of publicity on a nefarious “coup against a dule (sic) elected president…” Why, pray tell, are you wasting your time here? By all means, a “true” patriot would do something about it. What are you waiting for? Saddle up, mount up, lock and load, move out, or whatever it takes to take to the streets. We’re waiting….

      this is to “timid in the streets” roddie

  13. I note too that Mr. Turley needs some assistance in grasping the meaning of certain laws that he refers to.

    For example, Mr. Turley cites Rule 1.8(e), which states that “a lawyer shall not advance or guarantee financial assistance to the client” except, as he correctly points out, contingency cases (not applicable here) or indigent client cases (certainly not applicable here).

    But Mr. Turley’s understanding of the law ends there. Rule 1.8(e) is ONLY applicable if Mr. Cohen is “advancing” or “guarantee[ing] financial assistance” to Mr. Trump. I should not have to remind Mr. Turley that Mr. Trump does not need financial assistance from Mr. Cohen, nor was Mr. Cohen advancing anything to Mr. Trump. Mr. Cohen is a Trump loyalist and he is paying money here out of his own pocket. Period. There was no expectation of reimbursement, verbally, in writing, or by smoke signals. Get it? Good. Let us move onto another legal point.

    Mr. Turley also indicates that Mr. “Cohen is reportedly shopping a book about his representation of Trump” and “[t]hat could run afoul of Rule 1.8 on conflicts of interest in negotiating literary or media rights on subject matters of representation.” Mr. Turley, however, fails to inform readers that Rule 1.8 does not apply when the “client gives informed consent in writing” to the disclosures Mr. Cohen plans to make. Mr. Turley assumes that merely because he hates Trump and everyone that Trump loves, like Mr. Cohen, that Mr. Cohen must be stupid about the law, and would not cross every “t” and dot every “i” when in comes to legal compliance.

    It’s time to go back to law school, Mr. Turley, not as a professor, but as a student. And I’d recommend that you take contracts at least 3 more times until some of the basics start to sink in a little bit.

    1. Turley wrote, “When Trump was accused of a campaign-finance violation over the Daniels payment, Cohen insisted that ‘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 later added that the money was his own, and that it came from his home equity account.”

      Ralph Adamo said, ” I should not have to remind Mr. Turley that Mr. Trump does not need financial assistance from Mr. Cohen, nor was Mr. Cohen advancing anything to Mr. Trump.”

      Ralph you seem to be arguing that, because Cohen didn’t pay Trump $130,000 of Cohen’s own money from Cohen’s home equity account, therefore Rule 1.8 does not apply to Cohen. However, if the payment of $130,000 to Ms. Clifford ordinarily would have come Trump’s own money, then couldn’t the substitution of Cohen’s own money from Cohen’s home equity account in lieu of Trump’s own money be legally construed as Cohen offering financial assistance to Trump–even if the technical reason for doing so was to skirt the campaign finance disclosure laws???

    2. Ralph Adamo:
      Sorry Ralph, but Mike A is right that advancing money on your client’s behalf is tantamount to advancing to the client. The prime issue, as I see it, is where or not an attorney-client relationship existed or was it merely a friend engaging in a third party beneficiary contract for his friend. If Cohen is really a true believer and advanced his own money to stop what he saw as a fraud on Trump and the country without the candidate’s knowledge how is that an attorney-client relationship and hence an ethical or campaign finance law violation. Can’t adults contract for benefit of another person? Can’t I make a legally enforceable charitable pledge to the Red Cross without the flood victim’s knowledge or consent? As for Trump not knowing at the time of the deal, that could be an ethical issue but who’d complain? Trump? Does Stormy have standing to complain? Doubtful.

      1. I find it fascinating that so many lawyers here are reading Rule 1.8(e) from such a biased perspective. The ABA has specifically described the purpose of Rule 1.8(e) as follows:

        “Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation.”

        I realize that even otherwise intelligent people are suffering from HTDS (Hate Trump Derangement Syndrom), and this impairment necessarily blinds HTDS lawyers from accurately perceiving reality, but there are no set of facts in which Michael Cohen is subsidizing any actual or future lawsuit or administrative proceeding in the Stephanie Clifford case. So give it up.

        You’d be better off celebrating Clifford’s birthday, which will be tomorrow. Everyone with HTDS will be celebrating along with you, and, as they say, misery loves company.

    3. Ralph –
      Are you a lawyer? Or a law professor? I’m not sure what your standing would be to lecture Turley on the fine points of the law.

    4. Why, thank you, “counselor.” Oh, by the way, your insight and perspective on the ethical rules which regulate the professional activities of members of the bar seem unique. Which law school did you attend? Oh, and which bar(s) are you admitted to? You seem to have a view on the ethical rules which skew toward the unlikely…

      this is to “esquire” ralphie

  14. Turley doesn’t address perhaps the most interesting aspect of Cohen’s representation of Trump, namely whether certain communications between Trump and Cohen that might otherwise be privileged under the attorney-client privilege might be discoverable under the crime-fraud exception to that privilege.

    1. Draino, what crime? What fraud? There is no crime or fraud here. You are suffering from Hate-Trump-Derangement Syndrome (“HTDS”). HTDS individuals suffer from delusions about nonexistent events to support their irrational hatred.

      1. A criminal scheme is not necessary to eliminate the privilege. Civil fraud will do nicely for that purpose.

        1. What civil fraud, oh bloviating one? HTDS is truly a debilitating disease.

          1. I’ll comment on this tomorrow. In the meantime, I respectfully suggest that if you had a law degree, you would readily see the absurdity of your opinions on legal issues.

            1. May I respectfully suggest that if you did not suffer from HTDS, then you would understand that I have properly applied the rules to the actual facts, rather than setting up false straw man “facts” and then inaptly applying the rules to that bogus set of purported facts, the latter of which is your particular specialty.

            2. Mister Appleton, Sir, we all have good reason to believe that, unlike so many of the rest of us, you are very busy doing real work in the real world and lack sufficient spare time to wrangle with rabid blawg hounds such as Ralph Adamo. But even I, who am still not a lawyer, can see that either Cohen skirted the campaign finance disclosure laws or Cohen substituted $130,000 of his own money from his own home equity loan in lieu of Trump’s own money in violation of Rule 1.8 against advancing or guaranteeing financial assistance to his client, Trump. Ralph wants to excuse that violation of Rule 1.8 on the grounds that Trump doesn’t need Cohen’s money. But Ralph also wants to excuse Cohen’s skirting of the campaign finance disclosure laws on the grounds that Cohen is a Trump loyalist rather than Trump’s lawyer.

              IOW, Ralph wants to use the one horn of the dilemma to go around the other horn of the dilemma and vice-versa without either Cohen or Trump getting gored in the process. If you let Ralph get away with that, Mister Appleton, then you will have proven Ralph right when he claimed that he had erased the fine line between genius and insanity.

              1. So, what you’re saying, L4D, is that I’ve exhibited more of the latter than the former lately?

                1. Mark M. says I should let you go ahead on and have your fun, Iktome.

    2. Mespo’s comment at 7:50 suggests Cohen was acting as Trump’s friend, not lawyer … attorney-client privilege, out the window.

      1. If so, then Trump’s loyal buddy Cohen made a campaign contribution that was not disclosed as such.

  15. More Stormy Daniels! Please, ONLY Stormy Daniels news, ALL of the time. I can’t get enough. Like Mr. Turley, I too have discovered that my life is meaningless and directionless without some bit of information relating in some way, however tangential, to Stormy Daniels. Please keep those Stormy Daniels stories coming.

    1. How about some videos of her stripping. Or don’t you want to share?

      1. You mean she’s a “stripper” too? Wow, I did not know that she was so talented. Please tell me more! I’m sure that Mr. Turley and I would appreciate any information about Stormy Daniels that you can provide.

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