The kind of lawyer who moonlights in, er … other roles, let us say. Earlier, I predicted that the next angry tweet from Donald Trump would distract everyone from the Michael Cohen secret-tape story. In a plot twist, the president’s next angry tweet was about the Michael Cohen secret-tape story. Trump wants to know what kind of attorney would tape his client and presumed benefactor:
At least Trump seems to have moved away from his question over the weekend whether it was legal to tape the conversation. Yes, it was, as long as Trump and Cohen were both in states that allow single-party consent for recordings.
Whether it was ethical or not depends on two things: did Cohen think he’d need protection from Trump, and was Cohen acting as a legitimate attorney for a legitimate client? The American Bar Association’s ethics does allow attorneys to tape clients in a narrow set of circumstances, even in legitimate attorney-client discussions. The problem that Cohen and Trump face is that prosecutors are arguing that Cohen participated in illegal activities and that the privilege doesn’t apply to those conversations. One reason the tape might have ended abruptly is that the rest of the conversation did relate to legitimate attorney-client discussions, which would be privileged.
The swipe at reporters by Trump is clever, but probably not going to cause sleepless nights in newsrooms. Reporters by and large record their conversations with sources (to ensure accuracy in quotes), and it’s their sources that have to worry about the tapes getting out. Anything leaked in Cohen’s tapes would have been going primarily in one direction. Unless reporters griped about their bosses while on the phone with Cohen, they probably don’t have much to worry about.
But why bring this back up after last night? Most people would have expected a little misdirection from the Presidential Twitter platform after CNN’s big scoop. Perhaps this discussion on Fox & Friends inspired Trump, in which the big question is why Cohen taped Trump, and why Trump’s legal team waived privilege:
Secret recording revealed between then-candidate Trump and his lawyer Michael Cohen pic.twitter.com/UjNVqz8xzL
— FOX & friends (@foxandfriends) July 25, 2018
Betrayal! Well, this goes into the category of “choosing your friends wisely.”
And for that matter, so does today’s scoop from Axios:
Davis, a damage-control maestro going back to the Clinton administration, told me: “Michael Cohen has made a turn. This is on the record — Michael and I talked about it.”
- “Michael is going to tell the truth to the powers that be, and let the chips fall where they may.”
- “I’ve used this line too many times, but who talks about cash like that besides drug dealers and mobsters?”
- Davis said that the tape’s release sends the message: “I am no longer the previous Michael Cohen that you knew — taking a bullet for Donald Trump, saying anything to defend him, being a good soldier. … That is over.”
Cohen’s going to cooperate, in other words, and flip on Trump. If the tape is the worst of what Cohen can do, which is admittedly a very big if, it won’t make much difference to Trump … legally, anyway. It will be a major distraction for months, though, likely into the next election cycle. Trump would be better off talking about almost anything else rather than keep the attention on Cohen alive by venting on Twitter about him.