It’s fun watching the insta-interpretations of this move, some diametrically opposed, pour in on Twitter. Apparently it’s proof that either (a) Sessions is in the tank for Trump, insisting on remaining part of the Cohen probe so that he can spy on prosecutors for POTUS and tie their hands if an opportunity arises, or (b) Sessions is out to get Trump, conspiring with the Manhattan U.S. Attorney to bring down POTUS after giving Rosenstein and Mueller a free hand by recusing himself from Russiagate.
Sessions is finally taking revenge on Trump! Or, Sessions is finally going to bat for Trump!
One theory must be correct. Stay tuned.
NEW: AG Jeff Sessions has decided against recusing himself from the investigation into Trump lawyer Michael Cohen, @cstrohm reports.
By staying involved, Sessions is entitled to briefings on the Cohen investigation, conducted by US Attorney’s Office of Southern District of NY.
— Jennifer Jacobs (@JenniferJJacobs) April 24, 2018
Literally the first two replies to Jacobs’s tweet as I write this at 1 p.m. ET:
Bloomberg’s story has more details. The case for Sessions to recuse himself from Russiagate is straightforward: He worked on the campaign, he met with Russian officials, he landed in hot water for not remembering all of those meetings in testimony before Congress. Because he could be a witness, he has to step back. The case for recusing himself from the Cohen investigation is weaker. If it’s true that Cohen is being investigated for business activities, that should have no bearing on Sessions. The payment to Stormy Daniels might end up being classified a campaign contribution but there’s no reason to think Sessions knew about it or had anything to do with it. The case for recusal, I guess, would be that he and Cohen both worked on the campaign and that’s enough. Sessions disagrees — for now:
By staying involved in the Cohen probe, Sessions is entitled to briefings on the status of the investigation, which is being conducted by the U.S. Attorney’s Office of the Southern District of New York. That could put Sessions in the position of being asked by Trump, who strongly condemned the FBI raid on his longtime lawyer, to divulge information about the Cohen investigation.
Sessions could also weigh in on specific decisions by prosecutors, including whether to pursue subpoenas and indictments. The attorney general may be asked about his role in the Cohen investigation when he testifies before congressional panels on Wednesday and Thursday…
“The attorney general considers his potential recusal on a matter-by-matter basis as may be needed,” the department said in a statement. “To the extent a matter comes to the attention of his office that may warrant consideration of recusal, the attorney general would review the issue and consult with the appropriate Department ethics experts.”
It’s inevitable that Trump is going to lean on Sessions for updates on what’s going on with the Cohen probe. He’s reportedly asked Russiagate witnesses around him what they discussed during their interviews with Mueller. It’s unfathomable that he’d find the self-restraint to avoid pressing Sessions, particularly now that he’s decided (probably correctly) that the Cohen investigation is more of a threat to him than Russiagate is. What’s Sessions going to do then? If Trump tells him to disrupt the probe, it’d be as flagrant a violation of the DOJ’s ethic of maintaining independence from the White House in prosecutions as you could imagine. It might also be criminal; certainly Trump and Sessions would be accused of obstruction of justice. Which means Sessions is in a no-win situation. If he refuses to tell Trump what’s happening in the investigation, he might be fired. If he agrees to update Trump on what prosecutors are doing in an investigation in which Trump himself might be implicated, it’d be an ethical disaster.
Relatedly, Politico published a useful reminder this morning that the feds may have trouble flipping Michael Cohen even if he’s amenable. It goes back to attorney-client privilege. Conversations between Trump and Cohen that didn’t involve legal advice aren’t privileged. Neither are conversations that did involve legal advice but also involved Cohen’s participation in a crime or fraud. Any conversation involving legal advice in which Trump alone admitted to wrongdoing, without any crime or fraud on Cohen’s part, would be privileged, though. That’s at the heart of the concept: You need to be able to admit things to your attorney in confidence so that he can help you mount an effective defense, if necessary. If the Manhattan U.S. Attorney tries to squeeze Cohen on incriminating things that Trump said to him in the course of legal strategizing, that’s a big problem:
Even if Cohen is determined to break his confidences with Trump, legal ethics might deter federal prosecutors from coaxing him to betray his professional confidences with Trump, legal veterans and experts say.
“This idea of ‘flipping’ Cohen — they can’t just flip a lawyer to testify against a client,” longtime defense attorney Harvey Silverglate said. “Even if Cohen doesn’t know better, one would think the FBI and the prosecutors would know better.”…
“It is absolutely the case that, even if he is criminally liable himself, Michael Cohen is not allowed to disclose client confidences learned through the attorney-client relationship about any client without their permission,” said Paul Rosenzweig, a former legal adviser to Whitewater independent counsel Kenneth Starr.
Imagine Michael Cohen getting charged with offenses adding up to, say, 50 years in federal prison, begging the U.S. Attorney to make a deal, and being told that they can’t do it because … he’s a lawyer. Out: The attorney/client privilege as shield. In: The attorney/client privilege as sword!
Watch below as Alan Dershowitz and Jeffrey Toobin agreed on CNN last night that a bald-faced offer by Trump to pardon Michael Cohen if he keeps his mouth shut could plausibly amount to obstruction of justice and might well represent an impeachable offense. It’s not surprising to hear Toobin say that; it is surprising to hear it from Dershowitz, who sometimes seems to operate on TV as though he’s on Trump’s legal team. So long as Trump dangles any such offer obliquely, like, say, by pardoning Scooter Libby out of nowhere and with no formal review process to remind his cronies that he’s willing and able to do such things for them, it’s difficult to prove that that amounted to an offer to Cohen. But, Trump being Trump, there’s a nonzero chance that he’ll just dial Cohen up at some point and say, on a wiretapped call, “Don’t say anything. You’ll be pardoned.” Stay tuned.
By the way, WaPo reported a few days ago that Michael Cohen, who’s had rings around him legally lately by a porn star, was at one point the frontrunner to be White House counsel, one of the most important and powerful legal positions in America. Just the thought makes me want to sniff glue.