Below 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 “Trump.org” 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