Lawyer Cohen Testifies about Covertly Recording Client Trump Andrew McCarthy
https://www.nationalreview.com/corner/lawyer-cohen-testifies-about-covertly-recording-client-trump/
In Manhattan criminal court today, Michael Cohen testified about a recording the jury had already heard in the criminal trial of former president Donald Trump. It was a recording of a conversation between Cohen and Trump on September 6, 2016 (about two months before Election Day). At the time, Cohen was a lawyer working for Trump and the Trump organization. (He has since been disbarred following his sundry convictions for perjury and fraud.)
It is ethically dicey, to say the least, for a lawyer secretly to record a client. An attorney has a duty of fealty to the client — one that continues even after the representation ends. It would obviously be preferable for a lawyer to inform his client that he is recording their conversation; for such recording to be proper, with or without notice given to the client, the recording would have to be in the service of the client’s interests — the legitimate purpose of the attorney–client relationship. It could not be done to undermine the client, such as to have something to hold over the client.
Cohen has testified that Trump was unaware he was being recorded on Cohen’s iPhone as Cohen sat across from him. In the conversation, they discussed the need for Trump to reimburse David Pecker, then the CEO of American Media Inc., after AMI (which then owned the National Enquirer) had laid out $150,000 for the exclusive rights to Playboy model Karen McDougal’s story about a 2006 affair with Trump.
Cohen claims that he made the recording to keep Pecker “loyal” to Trump by easing his mind that Trump did plan to reimburse him. In the accounts I’ve read of today’s testimony, it’s not clear to me that Cohen ever played the recording for Pecker, just that he now says that’s why he recorded it. It seems to me at least equally likely that Cohen wanted some protection for himself in case Trump later tried to stiff him — i.e., that Cohen, a highly self-interested operator, recorded the conversation for his own benefit, not for Pecker’s and certainly not for Trump’s.
This demonstrates in small compass the weirdness of this case.
Presumably, the tape and Cohen’s testimony were being permitted under the crime/fraud exception to the attorney-client privilege (ACP) – i.e., on the rationale that the ACP protects only confidential communications in the nature of legal advice, not statements made to further fraud or other crime.
But wasn’t this legal advice?
Manhattan DA Alvin Bragg is evidently theorizing that the crime that would pierce the ACP was a federal campaign-finance violation. But for seemingly the zillionth time, payment for an NDA is not a campaign expenditure, even if those involved were motivated by a campaign to make the payment.
Furthermore, there is no evidence that Trump was thinking about, much less conspiring to violate, campaign finance law. That’s important because, as I explained in the weekend column, to establish a campaign violation, prosecutors must prove beyond a reasonable doubt that the defendant acted willfully– i.e., with an intention to violate a known legal duty.
If Trump had believed NDAs were campaign expenses, he would surely have paid for them with campaign funds. Doing so would not have hurt him in the 2016 election because (a) the next disclosure period (when expenditures would have to be reported to the FEC) was not until after the 2016 election; and (b) at that point, Trump could have disclosed such payments as “legal expenses” (the same designation that was made to record Trump’s reimbursement to Cohen for the $130,000 Stormy Daniels NDA payment on the Trump Organization’s books).
Hence, to say the “crime” here was a federal campaign violation (which Bragg has no jurisdiction to prosecute) makes neither legal nor logical sense.
So, does some other crime or fraud justify Judge Merchan in allowing the jury to hear the recording and Cohen’s testimony?
Bragg has signaled that he’s not really trying to enforce federal campaign law but, rather, New York election law. Specifically, the law in question is said to be §17-152, which makes it a crime to conspire to influence an election by illegal conduct. As I’ve previously observed, this theory is just a restatement of Bragg’s federal-campaign-law theory camouflaged by a state statute. That is, under Bragg’s state-law theory, the illegal conduct at issue is the supposed failure to comply with federal campaign-finance laws, so we’re right back to square one. It is simply not a federal campaign-finance offense to pay NDAs, which is why the federal agencies with exclusive jurisdiction to enforce federal campaign law — the FEC and DOJ — did not take action against Trump.
Bragg has also signaled that the crime could have been a tax violation. But Trump was never accused of a tax crime — even by Bragg, let alone by the federal government. Clearly, that’s because the repayment to Cohen was structured expressly to enable Cohen to pay any tax that might be due and owing; i.e., it was “grossed up” — Cohen was paid double what he’d laid out for the Stormy NDA so he’d still be whole if he had to pay taxes. In addition, there is no evidence that the Trump organization failed to meet any legal reporting requirements to the IRS or any state revenue agency. (Bragg would say that Trump’s business records falsely told tax authorities that the payments to Cohen were ongoing legal fees, not reimbursement for past expenses. Even if that’s true — and the defense maintains that the records were accurate — there would still be no tax fraud if the transaction was designed to make sure Cohen could pay taxes.)
How about criminal fraud? Bragg has indicted Trump under a New York penal statute that criminalizes falsification of business records with an intent to defraud. As I pointed out in the above-linked weekend column, Bragg’s claim that Trump stole the 2016 election is a political talking point (and a risible one, to boot); it does not blink into existence a scheme of the kind targeted by criminal-fraud statutes. Such statutes apply to deceptive schemes to cull money or property out of the victim. There is no such evidence in the case.
Finally, what about civil fraud? Karen McDougal eventually sued the National Enquirer, claiming she was misled into signing the NDA, which she anticipated would jump-start her career: She believed she’d get publicity from photo shoots and from penning health-and-wellness columns. Those benefits were not forthcoming to her satisfaction, so she became convinced she had been duped into signing away the exclusive rights to her story.
It is not at all clear that McDougal was defrauded by the Enquirer. She didn’t sign away her story for free; she got $150,000. Moreover, as David Pecker testified, the Enquirer let her out of her agreement, so she got paid plus she got her publication rights back. But all that aside, there is no evidence that Trump was involved in, or aware of, the details of the negotiations between the Enquirer and McDougal. What Trump wanted was McDougal’s silence, and what he was led to believe by his lawyer, Cohen — at least until Pecker changed his mind and decided not to seek reimbursement — was that it was going to cost him $150,000.
Color me puzzled about why it is proper for Cohen’s testimony against his former client to be permitted in a criminal case against that client — particularly Cohen’s testimony about a conversation with Trump that he recorded without Trump’s knowledge, which recording is now being used against Trump by state prosecutors. If you’re not puzzled, what do you imagine the media coverage would be if, say, a lawyer for Hillary Clinton secretly recorded a conversation with her about how to structure a legal NDA, and the lawyer then shared the recording with a red-state district attorney?
Cohen was a lawyer who was working on an NDA for Trump, and the conversation was about how Cohen planned to set up a vehicle (an LLC or some other business structure) by which he’d reimburse Pecker — consistent with the purpose of the NDA to shield Trump from any potential negative publicity — with the expectation that Trump would reimburse Cohen. That is, the lawyer was advising the client on how to execute an agreement in a manner that would accomplish the goal (here, secrecy) without exposing the client to legal liability.
The attorney–client privilege exists to encourage people to confide in their lawyers for such purposes. I don’t see a basis for piercing the privilege on the theory — Bragg’s theory — that Trump and Cohen were conspiring to commit a crime.
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