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A Confusing But Worsening Legal Stew for the President and Cohen

Terry H. Schwadron

April 27, 2018

President Trump’s call-in to “Fox & Friends” was surprising, of course, since he acknowledged for the first time that Michael Cohen had been representing him in the Stormy Daniels affair.

It is impossible to understand Trump’s motivation other than taking the opportunity to point out that Cohen is a good guy, but outright contradicting himself about Cohen’s representation of him, it would seem that the remarks may add to any legal problems that both could face.

The developments leave me a bit at sea legally about what is and is not related in different cases, but none of it seems good for Trump or Cohen:

· Cohen’s claim that, citing Fifth Amendment protections, he would refuse to answer any questions in Stormy Daniels’ challenge of a silencing agreement for which Cohen paid $130,000 in hush money would seem to make most of Daniels’ case for her. There are only three people who can say that there was a legal contract for silence — Cohen, Trump and Daniels’ lawyer at the time, who, in turn, is cooperating with the FBI investigating Cohen. I’m not sure exactly what this means legally, but it certainly would seem to free Daniels from any limitations on speech. Or maybe that Daniels’ aggressive current lawyer Michael Avenatti, will pursue deposing the President.

· U.S. District Court Judge Kimba Wood, who is overseeing any changes against Cohen stemming from an FBI raid on his home, office and hotel, apparently is appointingBarbara Jones, a former Manhattan federal judge, to determine what materials seized in the raids are protected by attorney-client rules. But Trump’s call-in interview on Fox played down Cohen’s legal representation of him as “a tiny fraction” of his legal work, adding that Cohen was mostly involved in business deals. That would seem to make claims that much of what records were seized moot.

· Nevertheless, Trump confirmedto Fox that Cohen “represented” him in the Daniels case. “Michael would represent me, and represent me on some things,” Trump said. “He represents me — like with this crazy Stormy Daniels deal, he represented me.” Last week, Trump told reporters that Cohen did not represent him, and his distanced himself from the payment contract.

So, it does seem clear that a backhanded offer of support by Trump for Cohen actually is undercutting whatever emerges as a criminal case against Cohen. Daniels’s attorney, Michael Avenatti, said shortly after Trump’s interview that this constitutes a “hugely damning admission.” Avenatti said it would help the case for him to depose the president because he has contradicted himself publicly.

A Washington Post report suggested that “Experts generally agree that Trump faces an impossible choice. He can either disown Cohen’s actions — which would undermine both his claims to attorney-client privilege and the non-disclosure agreement that Daniels signed — or he can own them and potentially implicate himself in Cohen’s actions.”

Trump can tell Fox what he wants, but if Cohen used Trump Organization stationery and facilities to make the Stormy deal, it will link back to Trump eventually. As part of the same Fox interview, Trump said no campaign funds were used, but that is irrelevant to whether prosecutors will see any payment by Cohen on Trump’s behalf as an illegal in-kind campaign donation.

Last week, Trump tweeted that a man Daniels said threatened her in a parking lot in 2011 was “nonexistent.”That appeared to suggest that Trump was aware of the situation, at least as of 2011.

Trump said in the “Fox and Friends” interview that he has been informed that Cohen’s case isn’t about him. “I’ve been told I’m not involved,” he said.

A Plum Line columndescribed the Fox interview as “full of falsehoods and bizarre statements. But it may also have complicated Trump’s legal problems. While those problems are multi-faceted, if there’s one person who’s worrying the president the most these days, it’s Michael Cohen, his ‘personal lawyer.’ “

The analysis notes that “The arrangement to obtain Daniels’ silence looks sketchy for multiple reasons, one of which is that it was repeated at least two other times. One involved Karen McDougal, a former Playboy model who was paid by the parent company of the National Enquirer to stay quiet about an affair she says she had with Trump. Another one involved a different Playboy model who had an affair with a major Republican donor named Elliott Broidy.

Cohen directly handled the Daniels and Broidy cases, and McDougal alleges that he was behind her arrangement as well. In all three cases, the woman was represented by a lawyer named Keith Davidson. It looks an awful lot like Cohen and Davidson were conspiring to serve only the men’s interests while the women were being tricked into thinking they had a lawyer actually looking out for them.”

Trump told Fox that began that he barely has anything to do with Cohen, which is a far cry from the description that he has been Trump’s “fixer for years.” The president said, “Michael is in business. He’s really a businessman, a fairly big business as I understand it, I don’t know his business. But this doesn’t have to do with me. Michael is a businessman, he’s got a business. He also practices law, I would say probably the big thing is his business, and they’re looking at something having to do with his business. I have nothing to do with his business.”

So, in trying to distance himself from Cohen, Trump admitted that Cohen represented him in the Daniels affair, which is a direct contradiction of everything both of them have been saying to this point. If, as Trump says, Cohen wasn’t really his lawyer, then those communications — say, about a payment to Daniels — are not privileged and can be used against both of them.

Cohen was a key figure in the Trump Organization, negotiating deals all over the world, deals that often involved questionable characters, corrupt relationships, and allegations of things like money laundering. This is why people keep asking whether Cohen is going to “flip” on Trump.

What we have learned is that we must pay attention.

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