Ew.
- Michael Cohen was officially disbarred from the practice of law this week, though that result was so inevitable that it barely qualifies as news. He pleaded guilty in November to lying to Congress and evasion of income tax liability, and was sentenced in December to three years in prison and to pay $1 million dollars in restitution. Tha alone made disbarment unavoidable, but he would have been disbarred without his crimes because he taped his client without his client’s consent and revealed attorney-client confidences to try to mitigate the consequences of his own conduct.
His disbarment is backdated to November when he pleaded guilty. It should have been backdated to the day he was admitted to the bar.
- Conservative critics are absolutely correct that for Congressional Democrats hold a hearing designed for no other purpose than to slime the President while he was engaged in crucial negotiations abroad shows where their priorities lie, and they are not with the United States of America. They want the President to fail in all things (which seems unnecessary, since they will represent his successes as failures anyway), and to undermine his ability to do his job.
There was no valid reason why Cohen’s useless testimony could not have been postponed until after the President’s summit with North Korea’s Kim.
- At my ethics seminar yesterday, I got these questions: a) If a lawyer advises a client to do something illegal, can he then ethically claim that his discussions with the client were not privileged by invoking the crime-fraud exception? The CFE holds that communications with a lawyer by a client who is seeking to engage in criminal acts are not confidential. And the answer to the question is “No.” b) Since Cohen has been disbarred, and is thus no longer licensed to practice, is he still bound by lawyer-client confidentiality? Ethically, of course he is. He just can’t be punished for violating it, except through civil suits by clients.
I compared this to asking whether a man condemned to death for murder can kill whoever he wants to.
- Is Cohen the most ridiculous witness ever? Who could be worse? He makes Mark Furman look like Diogenes. If O.J. Simpson could be acquitted despite overwhelming evidence because one of the witnesses against him lied on the stand once, what does that tell us about Cohen, who is going to prison for lying, among other things, has been disbarred because his profession has declared him untrustworthy, has obviously decided that turning on his long-time patron and employer is his best chance of mitigating the consequences of his own criminal acts, and was widely recognized as a slime-ball even before all of this?
No competent prosecutor would ever put such a witness on the stand. Even a lawyer as inept as, well, Michael Cohen could tear him into little pieces on cross-examination.
- I just checked. I officially flagged Cohen as an unethical lawyer in 2015.
The related point is, and I know I have written this before, President Trump deserves no sympathy regarding Cohen’s betrayal and perfidy, no matter what damage it causes. It’s not illegal to employ an unethical, incompetent lawyer with the character of a gangster, but it is incredibly stupid, irresponsible and arrogant. Looks can be deceiving, but not in Cheon’s case: he is central casting for a shifty crook. I wouldn’t have watched his testimony even if I could have, because he makes my skin crawl off my body and hide in the crisper. Trusting on someone like Cohen is signature significance for someone who values ethics as much as he values Confederate money.
- My old friend John Podhoretz writes at the New York Post in part…
“The weird thing: Since what Republicans were trying to do was save the president’s hide, they should actually have hoisted Cohen on their shoulders, sung “Hava Nagila” and done a nine-hour hora. His testimony and answers actually helped the president when it came to the matter of Trump’s possible impeachment.
It turns out his lawyer-fixer doesn’t have the goods.
Early reports on what Cohen might say suggested he was going to tell the committee that Trump told him to lie to Congress about his alleged porn-star payoffs. That would have meant the president had suborned perjury — a serious crime. Such testimony would indeed have amounted to a smoking cruise missile aimed directly at the White House.
But that is not what Cohen said.
This is what he said: “Mr. Trump did not directly tell me to lie to Congress. That’s not how he operates. In conversations we had during the campaign, at the same time I was actively negotiating in Russia for him, he would look me in the eye and tell me there’s no business in Russia and then go out and lie to the American people by saying the same thing.” Cohen added: “In his way, he was telling me to lie.”
If a president is to be impeached when an associate says he intuited that the president wanted him to lie under oath, there is no president following Trump who wouldn’t be vulnerable to the same charge and to impeachment under the same standard.
That is why subornation of perjury has a high evidentiary standard and one that mustn’t be lowered just because liberals and Never Trumpers are determined to see Trump humiliated.”
Ethics Alarms 
First time here. And, honestly, i haven’t read your prior comments. I take you at your word when you say that you are an ethicist. The world needs a lot more ethics professionals in my view. And I agree with your premise that Cohen should be doubted precisely because he has a history of lying under oath and elsewhere.
What do you make of Cohen’s checks? The Wall Street Journal reported, in January of 2018, that the Trump campaign paid off Stormy Daniels in the closing months of the campaign. Through spokespersons, Trump denied this. Several weeks later, Cohen admitted to paying off Daniels for Trump. Before the committee, he brings the reimbursement check from Donald Trump. I believe it’s a crime for a campaign to pay off a third party to avoid the disclosure of misconduct before an election. What, if anything should we make of the reimbursement checks?
That’s no crime. The theory that it is an election law violation to do before an election what you would have done anyway is novel, but forced, and has never been tested in court. Blackmail is a crime; paying off an extortionist isn’t. Trump is married. The whole thing is sordid but not illegal. Now, if Stormy were paid using campaign funds, that would be illegal, but there’s no evidence that she was.
Furthermore, the check, without more, proves nothing. It doesn’t prove that Trump directed Cohen to pay Daniels, it doesn’t prove that Trump was reimbursing him for paying Daniels, and even then, I doubt the claim that paying her was a crime would hold up in court. AND, even if it were an election law violation, that’s not a “high crime or misdemeanor.” They are usually handled with fines.
Thin gruel indeed.
Note that Matt could not specify the statute that explicitly states it is illegal to pay off a third party to avoid disclosure of misconduct before the election. If such a thing were illegal, it would be explicitly written into statute.
Also, was not the Obama campaign fined for campaign finance violation?
If you want to look at campaign finance violations, look at Clinton. Her $84 million in probable violations follow almost exactly what the Supreme Court ruled was NOT legal to do.
Let’s play it out. While married but years before the campaign, Trump slept with a porn star. During the campaign, he direct his lawyer to send funds to the porn star in exchange for a written agreement requiring the porn star to shut up. Months after the payment, Trump’s trust sends funds to the lawyer as reimbursement. But what about the source of funds? Is the March check Cohen brought drawn on an account owned by a trust with remote trustees? Is a trust allowed to reimburse the lawyer for paying off the porn star? If so, is that trust operating in compliance with trust laws if its settlor ordered it to make the payment? I am not a trust lawyer so I am not sure about this. But to get the benefits of trust status, the settlor typically has to give up control of the funds.
Welcome, Matt, to the fun house.
As for your questions, those issues may cause problems for a trust and may have piercing and tax consequences, but I highly doubt they are implicating criminal laws. Campaign finance laws are very strange, confusing, and contradictory. Jack is probably right that a violation of campaign laws of this nature results in a fine and not prison time.
jvb
I wonder if campaign finance laws could be used against the media.
That would be delicious but I suspect they have the pesky First Amendment – Freedom of the Press thingy in their corner.
jvb
If campaign finance laws are so broad as to cover protected speech, then campaign finance laws are unconstitutional.
Matt, I too welcome you to the fray. This is a smart, fun bunch of folks.
It should not be forgotten that Daniels signed an NDA related to the tryst in 2011, long before Trump’s announcement of his candidacy. The so-called “Hush Money” was clearly an attempt to go back to the well.
Photos of the check that Cohen provided yesterday certainly appear to be from a personal account, not from a trust, in that the account holder is listed as Donald J. Trump with no implication of any other entity involved.
It should also not be forgotten that Daniels and her attorney, Michael Avenetti, tried to sue Trump for defamation. The suit was dismissed and Daniels/Avenetti were ordered to pay fees.
So what did we learn yesterday? Pretty much nothing we didn’t already know. We were simply reminded that Trump isn’t exactly a saint, and that some of the characters he surrounded himself with weren’t either.
Voters pretty much knew this, and yet the nation still decided that a self-aggrandizing huckster was a better choice than his opponent.
So we also learned (as if further proof was needed) that the fact that the so-called “resistance” is seizing upon Cohen’s “testimony” regarding Trump’s perfidy as a smoking gun tells us everything we need to know: first, that Democrats and much of the news media still cannot accept the outcome of the election, and second, that all previous attempts, including the Russia Collusion narrative, have failed.
Thanks everyone. Good to be here. One check signed by the president was drawn on an account he owned. The other check, signed by the CFO of Trump.org, was drawn on an account owned by the trust. It’s probably not a huge deal.
Hey Matt, welcome!
I appreciate when a new voice comes and has us go back and look at the basics as with your question. I will let the others answer since legal ethics is not my area, but I’ll second their welcome and invite you to be a regular with us.
I wish the veracity of the witness mattered in this situation. From what we know about the intent of the proceedings, it clearly doesn’t.
Cohen could have read the Gettysburg address as testimony and the left would have proclaimed Trump guilty of something from it.
This is the same reason the Mueller investigation has taken so long, desperately waiting for someone to say something sounding like it might be impeachable.
Perhaps some haven’t noticed, but we have (at least) two legal standards and, as a result, two countries.
“…we have (at least) two legal standards and, as a result, two countries.”
Don’t think fly over country hasn’t noticed, either.
The Swamp gets away with things a normal American would be (and have been) destroyed over.
12-year-old me thought it unfair in the 90s that Bill Clinton could get away with workplace conduct that would get anyone of my friends’ dads fired.
No doubt the Democrats have no interest in what Trump is doing internationally unless it harms him in some way. That’s why the felt comfortable putting on a partisan circus — they want Trump to fail no matter what harm it does to the country. If you’re gonna make an omelette, it’s always hard on a few eggs, according to their thinking.
Trump deserves every personal bit of damage Cohen delivered, if any. The old saying about lying down with dogs comes to mind (with apologies to dogs for any necessary association with a man who is well beneath them).
But the presidency and the country did not deserve what the Democrats did, although I’m confident they believe it does, because it elected Trump. That’s the kind of Machiavellian horror we can expect from the deranged people that we’ve put in charge of the house.
Let’s see:
1. We put an used car salesman with a bad combover in charge of the presidency;
2. We put a bunch of low-grade leftist morons (with apologies to morons) in charge of the house.
Is it any wonder the Senate looks mostly sane by comparison to either? And extending the argument, I suppose we do deserve both the Donald and the Democrats. “We, the people” elected them, after all. Why should we really be surprised when it looks like a bad clown show in DC?
John Kass has an interesting explanation as to how this came to be.
http://www.chicagotribune.com/news/columnists/kass/ct-trump-clinton-women-kass-0518-20160517-column.html
It’s behind a pay wall and it’s the last day of the month, Michael. Does Kass speak of the Lanny Davis thing? I’m convinced the Clintons and their minions and allies have been pulling Cohen’s strings for months and coordinating this whole thing with Congress, CNN, the NYT and Washington Post.
Kass worte of Democrats coming to Clinton’s defense when he was excused of committing perjury to defeat a sexual harassment lawsuit.
This has to be a campaign finance “violation”.
An underrated reason why we ended up with President Trump. His public behavior with women and wives would have made him a pariah in either party prior to Clinton.
Once Clinton was the frontrunner in 1992, Democrats decided to downplay every new unfolding horror of their champion’s sexual deviancy (and probable rape), for years on end, claiming that Republicans were just trying to distract from “what really mattered.” They set a loud and clear precedent that nothing about a President’s personal life is relevant.
Tragically, they succeeded.
Does the Senate look more sane even if just considering Justice Kavanaugh’s hearings?
Good question.Remind me again — who was it that looked the most “insane” in that hearing? My recollection is virtually all of the Democrats who are now presidential candidates, which I suppose does not speak well of our menu for 2020.
I suppose all things are relative.
Perhaps that’s a qualification for office from one political perspective. It seems to be,
Indeed.
I believe that Cohen’s closing statwment was written by Lanny Davis and Hillary Clinton. It carried each and every Democrat talking point.
Question for the lawyers here.
Cohen was asked about how many times he threatened others on behalf of Trump over the ten years he worked for him.
Wouldn’t a cease and desist letter constitute a threat?
Wouldn’t any letter suggesting litigation if the other party does not do what Trump wants be considered threatening?
Other than contracts and tax issues don’t most corporate lawyers spend a sizable amount of time encouraging or discouraging others by threatening litigation?
Chris,
Perhaps settlement demands include threats of litigation. If there is a good-faith basis, either in fact or law, to make the demand, then there is nothing unethical about them.
jvb
Jvb
This was my point. The claim that Cohen was Trump’s hammer suggests that the legal work was in keeping with methods and practices of organized crime when in fact lawyers routinely “threaten” litigation to obtain a settlement. To me, I would not see it unreasonable for a corporate to communicate over 500 “threatening” letters or calls over 10 years representing a multi- business dollar global enterprise.
If this understanding is incorrect I would like to be corrected by someone that has a better understanding of the legal profession.
Agreed. But this is Trump we are talking about, so all things Trump are bad. Because Trump is a poopyhead.
Take a look at how the media is treating Trump for walking away from the North Korea talks. He is bad. BAD! There go the nukes. But, then they are mad at him for saying nice things about Un. Their dictators good (Maduro in Venezuela; Ortega in Nicaragua). His dictators bad. It all gets tiresome.
jvb
Thanks for the reply Jvb