Given the notoriety of the case, Ryan had argued to the court, “no one would want to be known” as a client of Cohen’s. He offered to give Judge Kimba Wood that third client’s name in a sealed envelope for the court’s information, if he had some assurances that the name would not be released on Monday.
The judge wasn’t buying it.
“What’s the legal ground for withholding the client’s name?” she asked. Ryan argued that Cohen had an ethical duty not to reveal the name if the client wanted to keep it quiet. Noting that the ethics of the New York bar held little sway in federal court, Wood also pointed out that “if the court requires it, your client is off the hook.”
She ordered the name be revealed. Ryan took a breath and identified the client as Hannity. The full courtroom reacted audibly and immediately.
So did Hannity. In a series of tweets, he quickly tried to distance himself from Cohen.
“Michael Cohen has never represented me in any matter,” he wrote. “I never retained him, received an invoice, or paid legal fees. I have occasionally had brief discussions with him about legal questions about which I wanted his input and perspective. I assumed those conversations were confidential, but to be absolutely clear they never involved any matter between me and a third-party.”
“In response to some wild speculation,” he continued, “let me make clear that I did not ask Michael Cohen to bring this proceeding on my behalf, I have no personal interest in this proceeding, and, in fact, asked that my de minimis discussions with Michael Cohen, which dealt almost exclusively about real estate, not be made a part of this proceeding.”
This, combined with comments made by Hannity on his radio show, has been interpreted by some as a denial by the Fox News host of his having been Cohen’s third client — or any client at all. It’s clear, though, both from what Cohen’s legal team presented and what Hannity has said, that he was indeed a client, at least in the direct sense of seeking attorney-client privilege for his conversations with Cohen.
That third client was first identified in a letter sent to the court on Monday morning.
“For at least three other clients that we have identified in the period of 2017 to 2018, the work was more direct legal advice or dispute resolution–more traditional legal tasks,” the letter read. “All of these clients are individuals. One of these legal clients is Donald J. Trump. Another legal client is [Elliott] Broidy. The third legal client directed Mr. Cohen to not to reveal the identity publicly.”
That point was reinforced by Ryan in court: The third client, whom we now know to be Hannity, told Cohen’s team that he didn’t want to be identified publicly. Not that he didn’t consider himself a client, necessarily — just that he didn’t want to be known to be a client. Cohen’s legal team’s efforts to protect Hannity hinged on the idea that it had an ethical duty to not release “information likely to be embarrassing or detrimental to the client if disclosed,” like, in this case, being associated with Cohen following the FBI raid last week. That said, the letter continued, “the unnamed client may allow Mr. Cohen to provide the names to a Special Master” — that is, to a third party who would keep it confidential.
It’s worth reinforcing that the sole reason that it was important to know Cohen’s clients is that the court was considering which of the documents seized in that FBI raid would be covered by attorney-client privilege. If the government filters that material to protect Cohen’s clients, it would need to know that communications with Hannity were ones to which they weren’t privy given that Hannity was one of Cohen’s clients. The point of attorney-client privilege is precisely to keep conversations between attorneys and clients private.
Which Hannity knows. On his radio show, while making the same wispy denials as in his tweets, he made perfectly clear that in the context of that privilege he was not only Cohen’s client but was insistent on having had privileged communications with him.
“Michael never represented me in any matter,” Hannity said. “I never retained him in the traditional sense as retaining a lawyer. I never received an invoice from Michael. I never paid legal fees to Michael but I have occasionally had brief discussions with him about legal questions about which I wanted his input and perspective.”
He continued: “And I assume that those conversations were attorney-client confidential.”
He made this point several more times.
- “Michael very generously would give me his time and we’d always say, ‘OK, attorney-client? Yeah, good. OK, good.’ And I’d ask him a legal question.”
- “We definitely had attorney-client privilege. Because I asked them for that. But he never sent me a bill or an invoice or did I actually officially retain him.”
- “I might have handed him 10 bucks, ‘I definitely want your attorney client privilege on this,’ something like that.”
You can’t have attorney-client privilege without being a client.
But it’s simpler than that. Professor Clark Cunningham of Georgia State University explained in a phone call to The Post how the status of “client” is determined.
“It primarily has to do with the client’s understanding of the situation,” Cunningham said. “That person may be entitled to attorney-client privilege or, under the ethics rules the lawyer has a duty of confidentiality as long as the person believes that — even if the attorney did not intend to create the relationship.”
Approached by Cohen’s legal team over the weekend, Hannity didn’t argue he wasn’t a client of Cohen’s but, instead, that he shouldn’t be identified as a client of Cohen’s. On his radio show, he referred to himself as a client of Cohen’s no fewer than four times, in the context of noting that his conversations with Cohen were privileged. He even, as in that last example, implied that he gave Cohen a de minimis amount of money (to use Hannity’s term) in order to retain Cohen in a non-traditional sense.
Hannity’s short-term goal is to kneecap the assumption that his involvement with Cohen was, like Trump’s and Broidy’s, centered on an agreement concerning an illicit sexual relationship. There’s no evidence that this is why he worked with Cohen. But for all intents and purposes — including the purposes of the court — Hannity was indeed Cohen’s client.
Note: Some people have noted that Ryan had the choice of writing down Hannity’s name or saying it out loud and that he opted for the second option. That distinction is noted to imply that Hannity’s name would have stayed private had Ryan written the name down.
That’s incorrect. Wood ordered the name be made public; she would clearly have simply read the name aloud herself had it been written down for her. What’s more, the choice between writing it down or saying it out loud was offered by Ryan, not Wood. She was indifferent to how the name was revealed, no doubt because she recognized that the end result was the same: The name would be known publicly in short order.