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How Forcing Michael Cohen To Divulge Attorney-Client Communications Damages The Rule Of Law


The New York Times promised that today Michael Cohen, the president’s former attorney, “will describe in what was called ‘granular detail’ the plan to pay Ms. Daniels, which he will say was initiated by Mr. Trump, the person familiar with the testimony plans said.”

This, the Times rapturously promised, would provide, “evidence of potential criminal conduct since Mr. Trump became president.” As shown below, this cooked-up pretext to invade the president’s attorney-client privilege is a stain of shame on the rule of law and tramples on a 500-year-old rule that protects our common law tradition.

Let’s start at the beginning with a British judge serving under Queen Elizabeth, who wrote, “Thomas Hawtry, gentleman, was served with a subpoena to testify his knowledge touching the cause in variance; and made oath that he hath been, and yet is a solicitor in this suit, and hath received several fees of the defendant: which being informed to the Master of the Rolls, it is ordered that said Thomas Hawtry shall not be compelled to be deposed” (Berd v. Lovelace Anno 19 Eliz. 1576-77).

Cut to 2018 when the left sacrificed this sacred principle of Western civilization in the name of getting Trump. The New York Times titillated Trump-haters with the public airing of a recording of a discussion between Donald Trump and Cohen concerning the payment of two women who were essentially blackmailing then-candidate Trump. The FBI seized the recording during a raid of Cohen’s office. The New York Times did not say where it obtained the recording.

Subsequent to the release of the recording, the president chose not to assert attorney-client privilege. Those familiar with attorney-client confidentiality understand that the public release deprived him of any meaningful opportunity to make that choice. Nobody can un-hear the recordings.

It’s bad that an attorney maintained secret audio tapes of conversations with his client. Such information has a way of ending up in the wrong hands, and secretly making these tapes impairs the spirit of the attorney-client relationship. But it’s really bad that the American Civil Liberties Union posted an article cheerleading the raid. The government doesn’t need a cheerleader, and certainly not from the ACLU.

The ACLU’s legal director wrote, “While all the facts are not yet known publicly, all indications thus far are that the search was conducted pursuant to the rule of law, and with sign-offs from Trump appointees.” Yes, the ACLU has cautioned us against questioning the propriety of a raid on a private lawyer’s office because, it assumes, all the paperwork it has yet to see is in order.

He also wrote, “The attorney-client privilege has always included a ‘crime-fraud exception,’ which provides that if you are using the attorney-client relationship to perpetrate a crime, there is no privilege.” What crime? Cole doesn’t say. The ACLU lawyer said the breach of an attorney’s office was justified based upon the “crime-fraud exception” without knowing what crime was being investigated.

On August 21, 2018, Cohen pleaded guilty to two “violations” of the Federal Election Campaign Act of 1971. Specifically, the plea agreement cited the limit on individual contributions to any presidential candidate to $2,700 per election. In cooperation with “Corporation 1,” Cohen admitted to helping purchase two negative stories (the Stormy Daniels and Karen McDougal stories) about sex with Trump. According to the plea agreement, the purpose of the purchases was to keep the stories under wraps until after the election.

Cohen helped broker the purchase of the stories for $130,000 and $125,000 respectively, using personal funds for the $130,000 payment. After the election, Cohen sought reimbursement from Trump for at least one of these payments and an additional $50,000 “fee.”

In the first campaign finance-related count, he’s accused of exceeding the $2,700 limit. In the second campaign finance count, he admitted to “Causing an Unlawful Corporate Contribution,” by obtaining $25,000 of funding to purchase one of the stories from Corporation 1.

So Trump haters argue that attorney-client privilege doesn’t apply under the “Crime Fraud” exception because Trump authorized payments to Daniels to keep her quiet. Is that illegal? Well, they argue, he failed to properly disclose the payment to the Federal Elections Commission. Is Trump guilty of failing to disclose the payment to the FEC? No.

Trump disclosed the reimbursement to Cohen for the Daniels and/or McDougal payments in an FEC filing, writing, “In the interest of transparency, while not required to be disclosed as ‘reportable liabilities’ on Part 8, in 2016 expenses were incurred by one of Donald J. Trump’s attorneys, Michael Cohen. Mr. Cohen sought reimbursement of those expenses and Mr. Trump fully reimbursed Mr. Cohen in 2017. The category of value would be $100,001-$250,000 and the interest rate would be zero.”

According to the FEC, the candidate should report the reimbursement of non-travel advances within 60 days. Cohen made the payments in October 2016, which would have fixed the deadline to report the payments after the 2016 election.

Is Trump guilty of violating a law by exceeding limits on campaign finance donations when he paid Daniels? Again, no. Political candidates are allowed to make unlimited expenditures on behalf of their own campaigns. Thus, if Trump paid Daniels with his own money (by reimbursing Cohen), it could not have violated any campaign limit. The plea agreement between Cohen and the government totally fails to address this exception in spite of acknowledging that Cohen was reimbursed by Trump.

Subsequent to Cohen’s plea of guilty and sentencing, the case should have been over. The New York Times then sought a copy of the search warrant used to justify searching Cohen’s office. This warrant is of critical public interest because we need to know whether a legitimate application of the “crime fraud” doctrine was indeed invoked.

An attorney’s office was raided and communication with his client was leaked. We need to be reassured that it was done pursuant to a legitimate application of the crime fraud exception. Otherwise, this precedent hangs like a sword of Damocles over all legitimate attorney-client communication between unpopular clients and their attorneys.

On October 25, 2018, the government opposed the New York Times’ request, claiming, “At present, disclosure of the Materials would jeopardize an ongoing law enforcement investigation in concrete ways. In addition, disclosure would infringe on the privacy interests of numerous third parties.”

Having an attorney publicly testify against his client is the sort of thing you might see in the Moscow trials under Joseph Stalin or Maoist China. It’s an extreme and public breach of the shared public interest in protecting attorney-client privilege. Shame on the left. Shame on the ACLU. And shame on the media for rejoicing on the destruction of yet another constitutional principle sacrificed on the altar of getting Trump.