Below is my column in the Hill newspaper on release of the first Cohen tape and rumored seizure of many more such tapes by federal prosecutors. I have previously stated that the secret taping of Donald Trump was, in my view, flagrantly dishonest and disloyal in dealings with a client. While the American Bar Association relaxed the rule against secret taping from being per se unethical, few lawyers would contemplate what Cohen did to his client. Indeed, New York is a jurisdiction that looks with disfavor on such taping as a routine matter. Unless done for some clear societal benefit, it is a serious potential unethical act. Michael Cohen continues to be an embarrassment to the profession in his low level of legal judgment and even lower professional standards of conduct.
Here is the column:
“Scratch a lover, find a foe,” Dorothy Parker once warned about the perils of loves lost. The same is not supposed to be true for lawyers. Even when a relationship ends, we continue to be bound to our clients.
However, former Trump counsel Michael Cohen, who once said he loved the president and would take a bullet for him, is no conventional lawyer. Indeed, he is not much of a lawyer at all, his critics say. The disclosure that Cohen secretly taped Trump and is looking for a deal only confirms that Cohen is now undeniably a foe of the president.
President Trump over the weekend tweeted that it is “inconceivable that a lawyer would tape a client” and that it is “totally unheard of” and “perhaps illegal.” The fact is that most people, including most lawyers, are shocked by Cohen’s conduct. However, it is not illegal. New York is a “one party” consent state, allowing secret recordings as long as one party consents. Since Cohen was a party, it would be lawful. There has been a long debate among state bars over the ethics of a lawyer secretly taping a client, an act few lawyers would contemplate.Of course, like so much of Cohen’s actions as counsel, this is all “inconceivable” from a logical or strategic standpoint. Cohen was clearly aware that this was a potential legal and political danger for Trump. Yet, without telling his client, Cohen knowingly created evidence that could be used against Trump, just months before the election. Cohen created the danger of a campaign finance charge with regard to the handling of the scandals involving Stormy Daniels and Karen McDougal. Nevertheless, he secretly taped his client discussing an act that clearly would be material evidence of a crime and seizable by prosecutors under the crime and fraud exception to attorney-client privilege.
I have noted previously that the McDougal controversy is legally worse than the Daniels controversy. McDougal had a longer alleged relationship, and her story was potentially more damaging to the president. McDougal was silenced by Trump’s friend, David Pecker, who bought her story for National Enquirer and then spiked it. What is dumbfounding is that Cohen actually suggested a course that would have made the already terrible political position into a legal nightmare.
It now appears Cohen was informed of the $150,000 deal, widely viewed as a “catch and kill” payment by Pecker to bury the controversy. Cohen reportedly suggested Trump might want to buy rights to the McDougal story to gain even greater control of it. It was vintage Cohen, blissfully advocating the worst possible course for his client. If Trump followed Cohen’s advice and purchased the rights, he would gag a woman with embarrassing information and clearly establish the Pecker payment as a campaign contribution. The last thing any competent lawyer would want is to “bring this in-house,” as reportedly suggested by Cohen.
The FBI predictably seized the tape of the president discussing a payment that could be charged as an in-kind campaign contribution. There is a general five-year statute of limitations for federal election violations. This allows for the prosecution of Trump after the completion of his first term. However, it may depend on whether Cohen is willing to implicate Trump in prior knowledge of the effort to silence McDougal.
The Justice Department previously prosecuted former Democratic presidential candidate John Edwards in a very similar case of third parties paying a mistress to keep quiet. While that prosecution ultimately failed, this would be a much stronger case. The timing and communication in the McDougal controversy is simply tighter. The fact is that such criminal cases are rarely brought and difficult to prove, but Cohen did his very best to, again, put his client in the worse possible legal position.
In the end, the president has good defenses unless Cohen flips, though those defenses are stronger with Daniels than McDougal overall. As a married man implicated in an affair, Trump had a nonpolitical motivation to silence both women. The problem is that McDougal was done through a third party who does not appear to have received any real value from the payment other than silencing McDougal.
Based on these facts, prosecutors could secure a campaign finance violation indictment. Pecker and his company are also exposed. A news and press exception exists to campaign finance laws but Pecker’s company, American Media Inc., would have had to be working in a traditional journalistic sense. While the key may be its level of coordination with Cohen or the Trump campaign, the company likely faces a challenge to argue that this was a traditional journalistic function. Cohen’s suggestion that Trump buy McDougal’s story only reaffirms the view that this was a political, not a journalistic, enterprise.
Trump attorney Rudy Giuliani has insisted, “In the big scheme of things, it’s powerful exculpatory evidence.” It is certainly true that the lack of prior knowledge by Trump would be an important defense for him personally. However, you need to take this scandal up to 40,000 feet to get that favorable “big picture.” The tape would contrast with repeated denials by Trump aides and associates that he had knowledge. It was Trump’s lawyer who discussed the contract before it was made with Pecker’s company. Finally, not knowing about the specific contract does not necessarily mean a lack of prior knowledge of the effort to silence McDougal.
Cohen has done everything short of going to Tinder to try to hook up with Robert Mueller. He has stripped away any references to Trump from his social media and posted biting comments like a despondent teen. It is a quite a change from a man who, among an impressive array of Trump sycophants, stood out for his proclamations of love and loyalty. Cohen once said, “I protect Mr. Trump. If there’s an issue that relates to Mr. Trump, that is of concern to him, it’s of course of concern to me, and I will use my legal skills to protect Mr. Trump to the best of my ability.” It appears now that Cohen’s loyalties are as dubious as his legal skills.
However, the one thing that always is “conceivable” is that Cohen would flip. Cohen was not selected for his legal skills. He was willing to do things most lawyers would not do. And he continues to do so.