Cohen’s ques­tion­able con­duct

Ex­perts raise con­cerns about lawyer sell­ing ‘in­sight’ into Don­ald Trump

Weekend Herald - - World - Richard Lard­ner Michael Cohen

Lawyer Michael Cohen’s si­mul­ta­ne­ous re­la­tion­ship with Don­ald Trump and sev­eral blue chip com­pa­nies that paid him for in­sight into the new US Pres­i­dent strikes le­gal ex­perts as un­usual and has trig­gered ques­tions about client con­fi­den­tial­ity.

Cohen’s ar­range­ment stands out, even in Wash­ing­ton where cor­po­ra­tions, trade as­so­ci­a­tions and other or­gan­i­sa­tions spend up­ward of US$3 bil­lion ($4.3b) an­nu­ally to in­flu­ence leg­is­la­tion and get ac­cess to the high­est lev­els of gov­ern­ment. He ap­pears to have worked as Trump’s per­sonal lawyer while at the same time ac­cept­ing tens of thou­sands of dol­lars from third par­ties to dis­close in­for­ma­tion about his client.

“If Cohen was rep­re­sent­ing the Pres­i­dent as an at­tor­ney, which he has cer­tainly ar­gued was the case, then Cohen’s obli­ga­tions as a mem­ber of the bar would seem­ingly make this ar­range­ment trou­bling,” said Josh Rosen­stein, a part­ner with the Wash­ing­ton firm San­dler Reiff and a spe­cial­ist in lob­by­ing com­pli­ance.

Rosen­stein said that if Cohen had Trump’s per­mis­sion to re­veal con­fi­den­tial in­for­ma­tion about him, then the im­pli­ca­tions may be sig­nif­i­cant. For ex­am­ple, it may be pos­si­ble ev­i­dence that Trump knew what Cohen was do­ing and was in­volved, he said.

“So the devil is in the de­tails,” Rosen­stein said. “What did the Pres­i­dent be­lieve these pay­ments would be used for? What did the Pres­i­dent be­lieve he was giv­ing to the com­pa­nies in ex­change for the pay­ments?”

Fed­eral pros­e­cu­tors are in­ves­ti­gat­ing Cohen for pos­si­ble bank fraud cen­tred on a US$130,000 pay­ment to si­lence Stephanie Clif­ford, a porn star bet­ter known as Stormy Daniels, who says she had sex with Trump in 2006, a tryst the Pres­i­dent has de­nied.

Here are ques­tions and an­swers about le­gal and eth­i­cal scru­tiny Cohen is fac­ing:

Are there any re­cent par­al­lels to Cohen’s ar­range­ment?

Not re­ally, said Craig Hol­man of Public Cit­i­zen, a non­profit watch­dog group.

“It strikes me as ex­ceed­ingly brazen,” said Hol­man.

But self-de­scribed “fix­ers” like Cohen who make bad sto­ries go away or help pres­i­dents with other thorny mat­ters are not un­com­mon.

Ver­non Jor­dan served in a fixer role for for­mer Pres­i­dent Bill Clin­ton. A close friend of Clin­ton’s, Jor­dan chaired his pres­i­den­tial tran­si­tion team in 1992 while also work­ing for the pow­er­house lob­by­ing firm Akin Gump. Jor­dan, oc­ca­sion­ally called the “First Friend”, helped White House in­tern Mon­ica Lewin­sky find a job af­ter Clin­ton ended his in­ti­mate re­la­tion­ship with her in May 1997.

Was Cohen a lob­by­ist?

Cohen wasn’t reg­is­tered as one. Paul S. Ryan of Com­mon Cause said Cohen had plenty of wig­gle room to help his cor­po­rate clients, which in­cluded AT&T and phar­ma­ceu­ti­cal gi­ant No­var­tis, with­out run­ning afoul of lob­by­ing rules.

Those rules, for in­stance, re­quire that lob­by­ists reg­is­ter as such only if they’ve spent at least 20 per cent of their time with a client over a three­month pe­riod do­ing lob­by­ing work.

“There is a whole lot of in­flu­ence ped­dling that Michael Cohen could do with­out falling into the scope of fed­eral lobby leg­is­la­tion,” said Ryan, vice pres­i­dent of pol­icy and lit­i­ga­tion at the good gov­ern­ment group. He added, though: “It’s slimy. It looks like an ef­fort to per­son­ally profit from his re­la­tion­ship with the Pres­i­dent, and hide it all from the public through a shell com­pany.”

AT&T said Cohen’s com­pany, Es­sen­tial Con­sul­tants, did no le­gal or lob­by­ing work for the com­pany. No­var­tis said Cohen was hired to ad­vise the com­pany as to how the Trump Ad­min­is­tra­tion may ap­proach health­care pol­icy.

But Hol­man of Public Cit­i­zen said Cohen’s ac­tions ap­peared to be well be­yond the gath­er­ing of “po­lit­i­cal in­tel­li­gence” and dis­pens­ing advice.

“Cohen’s cor­po­rate clients had busi­ness pend­ing be­fore the Trump ad­min­is­tra­tion,” he said. “No­var­tis needs FDA clear­ance for the sale of its drugs and sup­ports rolling back [the Af­ford­able Care Act]. AT&T has a lu­cra­tive busi­ness merger be­ing blocked by Trump’s Depart­ment of Jus­tice.”

Was Cohen obliged to in­form Trump of his cor­po­rate clients? Cohen’s pay­ments from com­pa­nies while act­ing as a per­sonal lawyer to the Pres­i­dent may raise le­gal is­sues be­sides whether the con­sult­ing work con­sti­tuted lob­by­ing.

Gov­ern­ment ethics lawyer Kath­leen Clark said Cohen had an obli­ga­tion un­der New York state law to in­form Trump of the con­sult­ing work if it po­ten­tially con­flicted with Cohen’s work as a per­sonal lawyer to the Pres­i­dent.

She said fail­ure to in­form the Pres­i­dent, and get his con­sent, could ex­pose Cohen to the loss of his law li­cence or other dis­ci­plinary mea­sures.

“Trump has a right to know that AT&T is pay­ing Cohen,” said Clark, a law pro­fes­sor at Wash­ing­ton Univer­sity in St Louis. “These fi­nan­cial re­la­tion­ships may af­fect the de­gree to which he trusts what Cohen tells him.”

Was Cohen bound by the ethics pledge re­quired for Trump’s ap­pointees?

No. Cohen isn’t an em­ployee of the US Gov­ern­ment and there­fore not bound by the pledge, which re­stricts in­flu­ence ped­dling to those com­ing into or leav­ing the Trump Ad­min­is­tra­tion. The pledge, which Trump in­sti­tuted shortly af­ter his in­au­gu­ra­tion, pro­hibits for­mer lob­by­ists, lawyers and others from par­tic­i­pat­ing in any mat­ter that they worked on for pri­vate clients within two years of go­ing to work for the Gov­ern­ment.

Even though the pledge didn’t ap­ply, Bren­dan Fis­cher of the non­profit Cam­paign Le­gal Cen­tre said Cohen’s ar­range­ment shows that Trump has failed to “drain the swamp” in Wash­ing­ton as he promised he would do.

“This is a snap­shot into a dark form of in­flu­ence ped­dling,” Fis­cher said. AP

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