Michael Cohen And The Forgotten Problem

Attempting to raise any point about Michael Cohen, Trump’s “fixer,” is an invitation to the unduly passionate to outrage. After all, he’s pleaded guilty, but more importantly, he’s implicated the First Individual in his crimes and there is nothing more important than that. There can be no question raised, even if a nuanced understanding of what happened to Cohen remains unanswered.

This is where we are, making up excuses and fighting against any doubt that the hated Cohen deserves to be hated, because it moves us ever closer to the end of Darth Cheeto’s reign.

When all is said and done, the April raids by federal prosecutors targeting Michael Cohen’s office and other premises in Manhattan may be seen as a turning point for Donald Trump’s presidency.

Those raids — and Mr. Cohen’s own malfeasance — opened the door for Robert Mueller, on Thursday, to convict President Trump’s longtime loyalist and personal lawyer of lying to Congress. What the special counsel has gathered since the raids provides the clearest proof yet to the American public that Mr. Mueller’s inquiry — derided by the president and his allies as an aimless fishing expedition — is rooted in the law and facts.

That Cohen admitted during his allocution on his § 1001 plea to lying to Congress does nothing to explain the justification for raiding the office of a lawyer. The simpleton’s reaction is that Cohen wasn’t a lawyer, but a “fixer,” as if that means anything. Negotiating and drafting agreements is legal work, even if it involved Stormy Daniels or a future Trump Moscow hotel.

This isn’t to argue that he didn’t commit crimes as well as perform legal services, or even do both at the same time. Or frankly to defend Michael Cohen at all. This isn’t really about Cohen, even though the dolts can’t let go of the concrete and their hatred. Cohen is just the focal point of outrage that compels people to spit out excuses why this time, because Cohen, something that should be deeply concerning isn’t concerning at all because we hate Cohen.

The legal excuse is that Cohen was part of a conspiracy with Trump, so the crime/fraud exception applied. Does it? Maybe, but it remains unproven. Cohen didn’t challenge the search of his office, the seizure of his papers, and Mueller was never tested as to this cause he possessed to raid a lawyer’s office. Neither campaign finance violations nor lying to Congress add an iota of explanation as to the justification for raiding a lawyer’s office.

And I can hear you, “but he WASN’T A LAWYER!!!” Maybe not, but what you know now isn’t what you knew when the raid occurred, and he was a lawyer, even if he was also engaged in improprieties. This isn’t a defense of Michael Cohen, that miserable thug, but a defense of lawyer’s offices being raided, lawyer’s files being seized, and it being hunky-dory with you as long as you really hate the people involved.

If this was Martin Luther King’s lawyer’s office, would you be so sanguine? But he wasn’t engaged in crimes, you shout in response. Are you sure? King was all about civil disobedience, which is a nice way of saying breaking the law, and there’s a good chance his lawyer knew about his plans to break the law in advance. Suddenly, the crime/fraud exception isn’t such a far-fetched idea. But again, the point isn’t that it happened, but that it could.

Lines with huge legal and social significance are being crossed here. Maybe they should be, and there is substantive legal justification for doing so, a far stronger contention than Cohen was a fixer so it was fine to raid his law office. But nothing that’s happened has made that clear.

With his latest guilty plea, it has become increasingly likely that Michael Cohen may give testimony against his client. Who would have the temerity to doubt that this is the greatest thing to ever happen, a lawyer testifying against his client, when both lawyer and client are hated?

Forget protecting client confidences, as Cohen has far greater problems than disbarment, which will happen regardless. Forget the testimonial privilege, as Mueller’s information was carefully crafted to make certain everyone knew who “Individual 1” was, and Cohen swore to it. The protections upon which clients are told to rely, that they can tell us anything and no one can make us rat them out, have been spectacularly blown up.

But this is just about Cohen and Trump, rather than raiding lawyers’ offices, revealing client confidences, giving testimony against clients, so there’s nothing to worry about. And, indeed, it’s possible that no office of a lawyer who’s not Cohen will ever be raided again, no confidences revealed, no privilege violated.

When we hate people enough, we turn a blind eye to how the government (in this case, the Special Counsel) deals with them. We did this with drug dealers in the 80s, as well as sex offenders and child-predators in the 90s. And we make excuses, clinging for dear life to crumbling ledges so we don’t fall off the cliff. We do this because we want so desperately to “get” the people we hate at any given moment and have to make the impediments go away.

Obviously, the crime/fraud exception exists, but that the public, lawyers and most importantly, clients, see it as an exception big enough to drive a Mack truck though means that clients should, at least in the back of their head, have some serious concern that anything they tell us, any paper in our office, can end up damning them. And if the government goes after the lawyer who prefers to save his sorry butt rather than his client, it will end up on papers in court to which the lawyer will swear.

Maybe this time none of these concerns apply. But that doesn’t mean what happened here shouldn’t be of huge concern to every lawyer, as having their lawyer rat them out is of huge concern to every client. No matter how thrilled you are about Cohen pleading guilty and implicating the First Individual, your failure to remember the “nagging” problem of confidentiality and privilege means you have no business representing clients. Hate Cohen all you want, but if you hate him more than you care about your clients, get out of criminal defense.

7 thoughts on “Michael Cohen And The Forgotten Problem

  1. Jeff Gamso

    I’ve fielded calls from law enforcement hoping to get my help in tracking down a client who escaped from jail. I’ve fielded calls from law enforcement hoping to get my help in tracking down a client who’d gone capias for missing a court appearance. I’ve fought subpoenas for copies of client communications. (The prosecutor had, as I understand it, turned down the cops’ request to get a search warrant for my office..)

    And that’s just me.

    There’s nothing much new in what they did with Cohen. He’s not the first lawyer law enforcement has gone after – for his own suspected misdeeds, to get dirt on his clients, or both. Nor, sadly, is he the first to cooperate, even when that means turning on a client.

    Anyone who figured it was all pristine was living in a fool’s paradise long before Cohen’s story came to light. Some cops and prosecutors push the limits – and beyond. Some lawyers lack integrity and some are crooks themselves.

    And, as a briefly self-serving addendum, I should add that I didn’t provide the cops with any info on the missing clients and they never got the subpoenaed document (though there’s a story there I might tell in a quiet bar over some good scotch).

    1. SHG Post author

      Not that your stories aren’t more fascinating than mine, or every other CDL who will read this post, but you left out the payoff for having suffered it. If you’re going to indulge yourself, at least make it worthwhile.

  2. Andrew

    The raid on Cohen’s office wasn’t officially Mueller’s gig, but rather one his office referred to SDNY, right? They went through the whole special-master song and dance to keep privileged documents away from the prosecution. Maybe that process is a farce, and it certainly was expensive for both parties, but at least there’s a process… I guess?

    Mueller certainly could have ended up with the seized materials, of course.

    1. SHG Post author

      Ask any defendant how cool they are with their legal files being vetted by a special master. It’s better than nothing, but not quite what they had in mind when they went to a lawyer.

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