Trump’s denial on Stormy Daniels may have invited investigators to go after Cohen
WASHINGTON — President Donald Trump and the White House declined for weeks to answer a basic question about the Stormy Daniels payment: Was Mr. Trump involved? Reporters finally got a denial on April 5, and then the lawyer who made the payment, Michael Cohen, had his office raided Monday.
So do those two events have anything to do with one another?
Some legal experts say it’s quite possible. They say Mr. Trump’s denial that he had knowledge of the Daniels payment, combined with denials by Mr. Cohen and his lawyer David Schwartz, meant both sides had effectively said the matter didn’t involve attorney-client communications. And given that the standard for raiding a lawyer’s office is higher, that could have bolstered the case for the raid.
Former federal prosecutor Patrick Cotter said the dual denials “allowed the prosecutors seeking the search warrant for Mr. Cohen’s office to tell the approving court that the two people on earth who might have claimed that anything related to Mr. Cohen’s actions in that regard were covered by attorney-client privilege are now both onrecord denying that.”
Mr. Cotter added: “Trump’s statement certainly made it much easier to get the warrant for at least those materials related to the Stormy situation.”
Georgetown University law professor David Super said the denials “absolutely” raised the prospects of a raid.
“It also gave prosecutors a reason to believe that Mr. Cohen was acting on his own rather than in a representational capacity,” Mr. Super said.
That said, other experts were more skeptical. They stressed that these types of raids take immense planning and that, even if Mr. Trump’s comment might have factored in somehow, it was likely in the works for weeks.
“The decision to raid Cohen’s office is a very big deal, and it would not turn on any offhand comment by Trump,” said former federal prosecutor Peter Zeidenberg, who added: “In addition, government agents would be hard-pressed to maintain that [Mr. Trump’s] statement was considered truthful.”
Former top Justice Department aide Harry Litman said he also doubted that the raid turned on Mr. Trump’s comments, and he also said investigators would still have to treat the situation as if they were dealing with privileged materials — including of other Cohen clients.
“Put otherwise, the basic calculus — legal and tactical — of whether to do the search wouldn’t have varied based on the supposition that maybe they’d get lucky and find some non-privileged incriminating documents,” Mr. Litman said.
Even if Mr. Trump’s denial didn’t help tip the scales on the raid, though, it could impact a potential criminal case against Mr. Cohen - and eventually, investigators may hope, a deal for Mr. Cohen to cooperate with Robert Mueller’s Russia investigation. (Mr. Mueller’s team didn’t carry out the raid, but it did provide a referral to the U.S. Attorney’s Office for the Southern District of New York. And nothing would prevent the U.S. attorney’s office from securing his cooperation with Mr. Mueller as part of a plea deal.)
Mr. Trump tweeted Tuesday morning that “attorneyclient privilege is dead,” but his previous comments suggested that he and Mr. Cohen never conversed about the Daniels payment. That would mean, as Mr. Super suggested, that Mr. Cohen wasn’t acting as Mr. Trump’s legal representative in the case and that he couldn’t argue for such a protection — at least relating to the Daniels case.
Added Mr. Cotter: “You can’t be providing legal advice and services if you are not acting as a lawyer, nor can you be providing attorney-client protected legal services to a client completely unaware of what you are doing.”
Perhaps this is at least part of the reason the White House and Mr. Trump spent so long conspicuously avoiding answering such a basic question.
If Mr. Trump did know about the payment, it is possible documents about it might be protected from prosecutors, Paul Rosenzweig, a former official in President George W. Bush’s administration, wrote on the Lawfare blog. But if “Trump sought Cohen’s legal advice regarding the Daniels affair for an illegal purpose (e.g. to avoid Federal election campaign laws or to conceal the true source of the funds with which she was paid or to threaten her),” then the material wouldn’t be protected, Mr. Rosenzweig said.
The Supreme Court has spoken to this possibility as well.
In certain cases, lawyerclient materials do not receive special legal protections.
One of them is called the “crime-fraud exception.” Under this doctrine, the privilege does not protect lawyer-client materials in situations in which the lawyer was helping the client commit a continuing or planned crime or fraud, since that would not serve society’s goal of ensuring lawyers can render sound legal advice.
If the judge who signed off on the warrant invoked that doctrine, it would be “extremely significant,” said Katrice Bridges Copeland, a law professor at Penn State and a former white-collar defense lawyer.