Scratch A Lawyer, Find A Foe: Michael Cohen Releases Secret Recording Of Trump Discussing Payment To Alleged Mistress

donald_trump_president-elect_portrait_croppedBelow 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.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

125 thoughts on “Scratch A Lawyer, Find A Foe: Michael Cohen Releases Secret Recording Of Trump Discussing Payment To Alleged Mistress”

  1. “Call the men in the white suits!”
    That is what we yelled out in days of old when the wackos needed to be contained.
    We need to discuss the word “containment” in the context or topic of the President.
    It is no longer enough to just say: “Mister President: Have pity on the working man.”
    Our President sees a “working man” as some old artFay throwing dice at one of his casinos.

  2. New York attorney Michael Cohen recorded [ a ] telephone conversation(s) with a client ( Donald J. Trump ) without his client’s knowledge or consent.
    Under New York Penal Law sections 250.00 – 250.05 attorney Cohen’s recording(s) constituted a legal act(s).

    In California, California Penal Code section 632, “All” parties must consent to a telephone recording. In California, attorney Cohen’s action(s) was (were ) … is (are) criminal violation(s).

    Twelve states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada ( please note; State Supreme Court interpreted a so-called one party consent recording as an “All” party consent ), New Hampshire, Pennsylvania, and Washington. Be aware that you will sometimes hear these referred to inaccurately as “two-party consent” laws. If there are more than two people involved in the conversation, all must consent to the taping.

    As a civil trial lawyer for over 35 years, I will not assert ethics are not important or even relevant.

    Donald J. Trump and President Donald J. Trump have one problem, and, I submit, only one problem, which is political .
    He has a political problem.

    The only way he can have any other problem is to talk to Special Counsel Mueller or any of his minions. Then, and only then, will Donald J. Trump and President Donald J. Trump have a criminal problem.

    Special Counsel Mueller and his minions are cops, nothing more.

    As I said before and will say again, again, and again, “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstance.”  Watts v. Indiana  338 U.S. 49, 59 (1949).

    Attorneys or individuals from any other and every other profession, business or work lie. They lie; you lie and, yes!, I lie.

    But, not all the time. At least, not most of us.

    Attorney Cohen and Mr. Cohen lie. Facing civil and criminal penalties, including jail time, attorney Cohen and Mr. Cohen will lie. In fact, all people or, at least, most people will lie.

    Oh!, yes, no one admits to lying or intentionally misrepresenting a fact. One’s perception and understanding can and will be affected, colored and pressured to remember it, think it and say it differently then what happened. Human nature.

    The question is not and never will be whether attorney Cohen, Mr. Cohen or anyone was or is ethical, moral or a good man. The only question is whether attorney Cohen, Mr. Cohen or any witness is lying. In legal terms, witness creditable.

    I respectfully submit no doubt exists as to whether not attorney Cohen or Mr. Cohen is a lier, or has lied or will lie.

    Corroboration can and will always be an issue. Corroborating attorney Cohen or Mr. Cohen will not, I suspect, be easy. Even if he were corroborated, I suspect strongly the witness or witnesses corroborating him will have his/her only credibility issues.

    The people and issues pertaining to this “problem” do not lend themselves to a convent of nuns.

    As an Ancient Greek philosopher ( and Schopenhauer too ) said, “Two persons can keep a secret as long as one of them is did.”

    There are no facts, only interpretations.

    At least, that is my present opinion of the problem, whether it is political or if it were to become criminal.

    As a personal note, I was in the San Francisco U.S. Attorneys Office ( civil division) when attorney Mueller was in charge of the criminal division and when he and his minions tried the Hells Angels trials.

    Mr. Mueller may wish, want or need to go back and review whom his chief witness was.

    The Hells Angels I trial ended in a hung jury, as I remember. The Hells Angels II resulted in a verdict for all defendants ( 9 or 10, if not more ), half of whom acted as their own counsel.

    dennis hanna

    1. Dennis Hanna,..
      – Thanks for your thoughts on this.
      I commented months ago that nobody was likely to come out of this ( the S.Counsel investigation, and related matters) looking very good.
      We’re not likely to have a “Howard Baker” or “Sam Irvin(sp?), or a Sam Dash etc. type of “Watergate Hero” this time around, regardless of the ultimate outcome.
      Not even St. James Comey will be able to pull that off.
      I don’t think that Peter Strzok did himself a hell of a lot of good in his recent Congressional testimony, if he intended to advance his case, or undo the damage he’d already done to his career and his reputation.
      If he was trying for that good ‘ol “Pharmacy Bro” type of ingratiating testimony, he suceeded.
      You mentioned Trump’s political problem(s), which is true enough.
      And for reasons that I’ve detailed here before, I think that Mueller has been gaining on Trump as a politically polarizing figure.
      Not withstanding how many times people say or post “In Mueller I Trust” or “decorated Marine”, confidence and trust in Mueller and his SC investigation has eroded.
      He can not, or has not, wrapped up a two year– old investigation into Russian/ Trump campaign “collusion”.
      I’m not even going to bother again debating the bull**** lines about “look at all of the indictments”, or “it’s only been 14 months”.
      Those are about the dumbest excuses I’ve ever heard, and I won’t waste any more time repeatedly knocking down those bogus lines.
      If Mueller wants to give further ammunition to Trump, Giuliani, and others who are saying “witch hunt” or “wrap this thing up”, then he can continue what he has been doing.
      And that is projecting the image of a Friend of Comey out to get Trump by stacking his team with hyper-aggresive Democratic partisans, it is an inconclusive Dog and Pony Show dragging on and on, and it is a mute, stone-faces, horse-faced Mueller not bothering to communicate with the public where the hell he’s going with this farce.

  3. Professor Turley promotes the failed and fraudulent “malicious prosecution” of President Trump.

    Professor Turley is silent on the de facto possession of an illegal server, destruction of evidence as 30K e-mails with Bleachbit, obstruction of justice and the mishandling of classified material by Hillary Clinton.

    Professor Turley is silent on the irrefutable complicity of Obama in Hillary’s crimes through the use of a pseudonym and exchange of e-mail with Hillary.

    Why is Professor Turley prolific on a “witch hunt” and silent on evil?
    _____________________________________________________

    “All that is necessary for evil to succeed is that good men do nothing.”

    ― Edmund Burke

    1. Professor Turley is inexplicably silent on the massive conspiracy to “fix” the Hillary/Obama “investigation” by Sessions,

      Rosenstein, Mueller, Comey, McCabe, Strozk, Page, Kadzic, Yates, Baker, Bruce Ohr, Nellie Ohr, Steele, Simpson, Hillary, Huma,

      Lynch, Brennan, Clapper, Kerry, Stefan “The Walrus” Halper, Power, Farkas, Rice, Obama et al.

      Evil succeeds.

    2. George: you’re pivoting again. You are a true Fox Disciple, but HRC has been exonerated. No grounds for criminal prosecution, no matter how many times Hannity, Carlson or any other Trump supporter say otherwise. The story today is another Trump lie, proven by tapes.

      1. Saying HRC has been exonerated is disingenuous. There is currently a US Attorney-led review of all aspects of the matter, and perhaps we ought to await the results of that review — just as we must await Mueller’s report.

      2. i dont know what Fox says but I know what Comey said and should have and that is a prosecutor would not bring charges. Which is less related to what she did and the evidence of it — which would be plenty and more than enough to successfully prosecute the average government employee for mishandling of classified information, but, we are not talking about the average government employee when you are talking about a former first lady and former secretary of state, you are talking about a whale

        of course Comey should have left that decision to Lynch, he went above his pay grade

      3. NUTCHACHA,

        I’d say you’re nuts, Cha Cha, but you’re irretrievably in denial which you will never recognize or acknowledge.

        Hillary and Obama were, are and will forever be absolutely and immutably guilty of possessing and using the illegal server, mishandling classified material, collusion, complicity, conspiracy, destruction of evidence, obstruction of justice, perjury, etc.

        Comey testified to Hillary’s irrefutable guilt and the electronic record shows Obama’s complicity and the use of a pseudonym.

        Comey committed the crimes of corruption, negligence, dereliction, obstruction of justice, conspiracy et al. as he refused to do his duty and indict Hillary precisely because he would have convicted Obama.

        Comey was protecting Obama by not indicting Hillary.

        You have no desire for and have no concept of good governance, freedom or a viable nation. You are what the Founders referred to as the “poor” who would “sell” their votes. You only know you demand “free stuff” as “Affirmative Action Privilege,” generational welfare, quotas, forced busing, unfair Fair Housing, discriminatory Non-Discrimination, Social Security, Obamacare, Medicaid, Medicare, etc., ad infinitum. You’re a parasite and you and you “ilk” can never be satisfied; you know it’s free so you always want and demand more which is why the Founders required voters to have a net worth of 50lbs. Sterling or 50 acres.

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