The new tape shows Cohen threatening then-Daily Beast reporter Tim Mak over his reporting of a biography, written by former Newsweek reporter Harry Hurt III. The biography titled “The Lost Tycoon,” including details from a sworn deposition from Trump’s first wife, Ivana, that Trump raped her during their divorce proceedings.
Cohen shows his infamous lack of legal knowledge and tells Mak that you cannot rape your wife by definition. That is wrong . . . in all fifty states. Cohen states in the recording below that “You’re talking about Donald Trump, you’re talking about the frontrunner for the GOP, presidential candidate, as well as private individual, who never raped anybody and of course understand that by the very definition you can’t rape your spouse.”
“Mark my words for it, I will make sure that you and I meet one day over in the courthouse and I will take you for every penny you still don’t have, and I will come after your Daily Beast and everybody else that you possibly know. Do not even think about going where I know you’re planning on going. And that’s my warning for the day.”
Cohen then morphs into a bad rendition of a mobster after being asked for a statement: He warns Mak to “tread very f–king lightly because what I’m going to do to you is going to be f–ing disgusting. . . . Do you understand me? Don’t think you can hide behind your pen because it’s not going to happen. . . . I’m more than happy to discuss it with your attorney and with your legal counsel because motherf—er you’re going to need it.”
Here is the recording: Cohen/Mak conversation
This is the man that President Trump has called a “good man” and his personal lawyer for years. While some of us have been saying for months that Trump needed to sever all ties to Cohen, Trump recently took Cohen out to dinner and affirmed to the media that he was still his lawyer.
The recording reveals addition unethical and unprofessional conduct by Cohen. Both threats of criminal and civil actions can violate the New York bar rules. Indeed, a prior opinion stated that following:
Rule 3.4(e) the New York Rules of Professional Conduct (the “Rules”) prohibits lawyers from threatening criminal charges solely to obtain an advantage in a civil matter, but does not apply to threats to instigate ancillary non-criminal proceedings against an adverse party, e.g., where a lawyer, on behalf of a client, threatens to report an adverse party’s misconduct to an administrative or regulatory agency unless the adverse party agrees to the client’s settlement demand. The inapplicability of Rule 3.4(e) to threats to instigate ancillary non-criminal proceedings, however, does not mean that lawyers are free to make such threats with impunity. Such threats may violate criminal laws against extortion, and, if so, they will likely violate Rules 8.4(b) and Rule 3.4(a)(6). Where such threats do not violate criminal law, they may nonetheless violate Rule 8.4(d), which prohibits conduct prejudicial to the administration of justice. Whether such a threat violates Rule 8.4(d) will generally depend on whether the threat concerns matters extraneous to the parties’ dispute or, conversely, would serve as an alternative means of vindicating the same alleged claim of right or of obtaining redress for the same alleged wrong. Additionally, if such a threat is made without a sufficient basis in fact and law, it may violate, inter alia, Rule 4.1 or Rule 8.4(c).
Lawyers often raise liability issues and talk can be tough. However, there is a considerable difference between putting a party on notice and threatening a clearly baseless actions against a journalist and others.
Here Cohen is muscling a journalist with the threat to go after not just him but “your Daily Beast and everybody else that you possibly know.” Really, everyone Tim Mak knows from his high school friends in Canada to his dog? What is the legal basis for that threat? It is like Cohen is reading from a script from Better Call Saul.
I am astonished that the New York bar has not acted previously to formally review Cohen based on a growing list of alleged improprieties and abuses. His conduct is an embarrassment not only to New York lawyers but the profession generally. This tape could easily find itself as a critical piece of evidence in any bar proceeding against Cohen. Cohen is not only misstating the law but he is threatening a journalist without any viable legal claim. It is absurd to claim that he could sue Mak or his publication for reporting on this obviously newsworthy story. Indeed, Cohen cites the very fact that makes such a defamation claim absurd. Mak was “talking about the frontrunner for the GOP, presidential candidate,” which makes him not only a public figure but a future public official. Under New York Times v. Sullivan and its progeny, public figures must meet a higher burden in showing a reckless disregard of the truth or knowing falsehoods. So Cohen misstates the existing law on rape and then cites the most damaging element against Trump in threatening a frivolous lawsuit against Mak and everyone he has ever known.
This also should make the Trump legal team uneasy about the recordings reportedly seized in Cohen’s office. The only thing worse than retaining a reckless and unprofessional lawyer is your reckless and unprofessional lawyer on tape. Cohen is the bill come due for Trump and moments like the Daily Beast call could easily be replayed over and over again in painful hearings to come.