What kind of trouble is Cohen in, and how might that affect the president?
The latest is that Cohen has informed the judge in a lawsuit brought by adult-film actress Stormy Daniels that he would be invoking his Fifth Amendment right against self-incrimination, since his actions with regard to Daniels are also part of a criminal inquiry being conducted by the U.S. Attorney for the Southern District of New York. On one hand, the Fifth Amendment provides an important right belonging to all Americans, but on the other, when the president’s lawyer says he won’t talk because it could put him in legal jeopardy, that’s not a good look.
What kinds of questions might Cohen be worried about answering? The arrangement to obtain Daniels’s silence looks sketchy for multiple reasons, one of which is that it was repeated on at least two other occasions. One instance 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 claims to have had with Trump. The other one involved a different Playboy model who had an affair with Elliott Broidy, a major Republican donor.
Cohen directly handled the Daniels and Broidy cases, and McDougal has alleged he was behind her arrangement as well. The women in all three cases were represented by a lawyer named Keith Davidson. It seems as though Cohen and Davidson conspired to serve only the men’s interests, while the women were being tricked into believing they were being represented by a lawyer actually looking out for them.
But that’s only part of it. Cohen insisted he paid the $130,000 to Daniels out of his own pocket (which could constitute an illegal in-kind contribution to the Trump campaign), and that he never told Trump about the arrangement. Trump, for his part, has denied having known anything about it at the time. This has always strained credulity to say the least, and this morning, Trump seemed to contradict that assertion on “Fox & Friends.” Trump began by saying that he barely has anything to do with Cohen:
“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.”
Then one of the hosts pointed out that Cohen is Trump’s attorney, and asked how much of Trump’s legal work Cohen handles. Here’s how the president replied:
“As a percentage of my overall legal work, a tiny, tiny little fraction. But Michael would represent me and represent me on some things. He represents me like with this crazy Stormy Daniels deal, he represented me, and you know, from what I see, he did absolutely nothing wrong . . . I’m not involved.”
So in trying to distance himself from Cohen, Trump just 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. Which is why Daniels’s lawyer, Michael Avenatti, cheekily tweeted:
It is possible that when Trump said Cohen was representing him “with this crazy Stormy Daniels deal,” he didn’t literally mean representing him in a legal sense, and that he meant something more like Cohen was “looking out for me by shutting this woman up.” But here i’s why that would be just as much of a problem for Trump. When federal agents raided Cohen’s home, office and hotel room, they seized computers and cellphones. Presumably, they now possess communications between Cohen and Trump. 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.
That goes beyond the Daniels affair. When Trump says he has lots of lawyers, and that Cohen only did a bit of legal work for him, he is telling the truth. Cohen was, however, a key figure in the Trump Organization, negotiating deals around the world — deals that often involved questionable characters, corrupt relationships, and allegations of things like money laundering. In the words of the New Yorker’s Adam Davidson, who has reported extensively on some of those deals, “I am unaware of anybody who has taken a serious look at Trump’s business who doesn’t believe that there is a high likelihood of rampant criminality.”
Which is why people keep asking whether Cohen is going to “flip” on Trump. In that discussion, there’s an implicit assumption — shared even by Trump’s defenders — that the president is obviously guilty of something. Because if he weren’t, Cohen wouldn’t have anything to offer prosecutors.
Let’s not forget that prosecutors never would have been able to get the warrant to make those raids on Cohen’s properties unless they had strong evidence that he was involved in crimes. It is certainly possible the potentially criminal activity had nothing to do with Trump or the Trump Organization, which is what Trump was trying to argue on “Fox & Friends” when he said “I don’t know his business. But this doesn’t have to do with me.”
Today, prosecutors wrote a letter to the judge overseeing the criminal case against Cohen, in which they noted that Cohen cited only three legal clients — Trump, Broidy, and Fox News host Sean Hannity — two of whom (Trump and Hannity) have said publicly that Cohen does very little if any legal work for them. Therefore, the prosecutors argue, Cohen won’t be able to claim that much of the materials seized fall under attorney-client privilege.
To wrap all this up, let’s take a step back and imagine the best-case scenario for Cohen and Trump. Perhaps prosecutors were mistaken about what they’d find in their raid of Cohen’s places of business and residence, and the search will have turned up nothing problematic. Perhaps the Daniels payoff was skeevy, but ran afoul of no laws. Perhaps all of Cohen’s activities with the Trump Organization were above-board and adhered to the highest ethical standards. Perhaps Cohen knows of no illegal activity that touches Trump in any way, and perhaps it wouldn’t matter because he’s completely innocent and has no reason to try to make a deal. Perhaps Trump himself and those around him are the kind of morally principled and upright people who would never do anything wrong, and all these investigations will only reveal just how honorable they are.
If you believe that, raise your hand.