White House

The Real Investigation

Michael Cohen in New York City, April 11, 2018. (Brendan McDermid/Reuters)
The one in the Southern District of New York, involving Michael Cohen and apparent hush-money payoffs, is a serious peril for Trump.

President Trump now has real legal peril. The potential jeopardy stems from the investigation that came to light this week when the FBI conducted raids on the office and residences of his lawyer and self-professed “fixer,” Michael Cohen.

I’ve never thought “collusion with Russia” posed jeopardy. If there had been anything criminal to that storyline, the politicized anti-Trump factions in the intelligence and law-enforcement agencies would have leaked it. And, notwithstanding Trump’s nauseating nods to Putin, the administration has taken enough aggressive steps against Russia that it is past time for the Kremlin to broadcast the big kompromat file if it exists.

I’ve also never thought Special Counsel Robert Mueller’s other known angle, obstruction, posed a great risk. There is a line between foolishness and crime. For important policy reasons, a president should not weigh in with the FBI director on the merits of investigating a friend and political ally; and it would be better if he did not make personnel moves that could be perceived as efforts to influence witnesses or affect the course of an investigation. But as long as a president’s actions — e.g., firing the FBI director, discussing the possibility of pardons — are on their face legal and within his legitimate constitutional authority, I do not believe they can validly predicate an obstruction prosecution. (In theory, they could be grist for impeachment, which involves a political inquiry into abuse of power, not a legal proceeding to establish the essential elements of a statutory crime.)

The matter now under investigation by the FBI and federal prosecutors in the Southern District of New York (SDNY), however, is a very live criminal investigation. Anyone potentially connected to it should be worried.

Much of the commentary about the SDNY investigation puts the cart before the horse. When Cohen’s law office, hotel residence, and home were searched pursuant to court-approved warrants this week, there were howls about a purportedly unconscionable violation of the attorney–client privilege. As I pointed out in the aftermath, however, whether this was an egregious constitutional affront or textbook investigative rigor depends on (a) exactly what was under investigation and (b) whether the materials sought from Cohen were, in fact, privileged attorney–client communications.

We did not know that at the time, and we are still not fully informed. Still, as an alum who spent nearly 20 years as an SDNY prosecutor, I’m always inclined to assume my old office is up to serious business. I also know well the ostentatiously careful steps the SDNY typically takes to avoid unconstitutional interference in the right to counsel — meaning to distinguish real legal assistance from schemes masquerading as attorney–client relationships.

In the earlier column, I observed that it would be outrageous to raid a lawyer’s premises if the only “crime” under investigation were a campaign-finance infraction — which is generally treated as a civil-law issue for the Federal Election Commission to sort out. I would feel the same way if it were essentially a campaign-law no-no inflated into an alleged bank fraud by some, shall we say, prosecutorial creativity (a euphemism for stretching the penal law to capture erstwhile innocent behavior).

That, however, is not what’s going on here — or, at least, I don’t think it is all that is going on here.

I believe that the government is investigating whether there was, in connection with Trump’s White House bid, a conspiracy to commit fraud and extortion for the purpose of silencing potentially compromising sources — specifically, people in a position to portray Donald Trump as a womanizer. Clearly, the prosecutors regard Trump and Cohen as potential co-conspirators. That does not mean a conspiracy will be proven, but the possibility is certainly being scrutinized. Here, it is important to bear in mind a distinction from the Russia investigation: This is not a counterintelligence matter; the SDNY is unquestionably conducting a criminal investigation, and a federal judge would not have authorized search warrants absent finding probable cause that federal crimes may have been committed.

There are twists to the known non-disclosure agreements — not least, the remarkable coincidence that the same Los Angeles–based lawyer, Keith Davidson, turns up representing each of the muzzled women.

The Cohen search warrants sought, as the New York Times describes it, “all documents, including emails between Mr. Cohen and Mr. Trump, related to Mr. Cohen’s efforts to suppress negative publicity ahead of the 2016 election.” We know that these efforts specifically involve — but are not necessarily limited to — the burying of stories about Trump’s flings with pornographic actress Stephanie Clifford (a.k.a. Stormy Daniels) and former Playboy model Karen McDougal. Various reports also indicate that a former Trump-building doorman named Dino Sajudin was paid $30,000 to stay silent about an unverified claim that, nearly 30 years ago, Trump fathered a child out of wedlock with a young Trump Organization employee.

While it can be unsavory, it is not illegal per se to enter arm’s-length non-disclosure agreements (NDAs). (They are not, by the way, enforceable to prevent grand-jury or criminal-trial testimony.) But there are twists to the known NDAs — not least, the remarkable coincidence that the same Los Angeles–based lawyer, Keith Davidson, turns up representing each of the muzzled women.

Ms. Clifford recounts a sexual encounter with Trump in 2006. The Wall Street Journal reports that she decided to explore selling her story in April 2011. Clifford worked through her manager, a former porn actress, Gina Rodriguez, whom she met through the latter’s husband, Greg Deuschle (a former porn actor known — of course — as “Randy Spears”). Rodriguez shopped Clifford’s Trump tale to Life & Style. After interviewing Clifford, the magazine called Trump’s representatives for comment. The magazine got an angry call back from Cohen, who threatened to sue. Cohen also allegedly called Rodriguez, whose husband, Deuschle, answered the phone. He recalls that Cohen warned him, “You tell Gina if she ever wants to work in this business again then she needs to call me immediately.”

Instead, Ms. Rodriguez called Davidson, a lawyer who frequently represents people claiming to have compromising information about celebrities. It is not known what, if any, contact Davidson had with Cohen at the time, but he apparently advised Rodriguez to back off Clifford’s story. Cohen also brought Life & Style around: In May 2011, the magazine informed Rodriguez that it had opted not to publish Clifford’s account.

Five months later, Rodriguez leaked the story to a gossip site called “The Dirty,” which reported that Clifford “had sex with Donald after one of his golfing events.” With the story now out, Life & Style quickly published a spread alleging Trump’s involvement with Clifford (among others). Meanwhile, Clifford claims that, at some other point in 2011, an unidentified man threatened her in Las Vegas — telling her to “leave Trump alone” and “forget the story,” then staring at her young daughter and adding, “That’s a beautiful little girl; it would be a shame if something happened to her mom.” Undoubtedly, the government is running this allegation down.

Karen McDougal maintains that she was duped by a “catch-and-kill” scheme in which Keith Davidson, ostensibly her lawyer, colluded with Michael Cohen and American Media Inc., the parent company of the National Enquirer.

Five years later, with Trump having sewn up the Republican presidential nomination, Cohen apparently got wind that Clifford was again talking to media outlets about selling her story. The Journal recounts that Cohen took the initiative, reaching out to Davidson in September 2016 to discuss an NDA. They agreed to a payment of $130,000 for Clifford’s silence. The agreement, which Clifford signed on October 28, less than two weeks before the election, was rife with pseudonyms — Trump referred to as “Dennis Dennison,” and Clifford as “Peggy Peterson.” Clifford explains that the fake names, coupled with the fact that Trump himself did not sign the document, were intended to enable Trump falsely to deny knowledge of the arrangement. Cohen orchestrated the payment by an obscure Delaware limited liability company he’d formed, “Essential Consultants.”

When the Journal learned of the agreement in January 2018 and began sniffing around, Clifford signed a statement denying that the sexual encounter had occurred. She now says Cohen used “intimidation and coercive tactics” to induce her signature.

Ms. McDougal maintains that she was duped by a “catch-and-kill” scheme in which Davidson, ostensibly her lawyer, colluded with Cohen and American Media Inc., the parent company of the National Enquirer. In such a scheme, a media company buys the exclusive rights to a story but then buries it, rather than publish it. AMI’s chief executive, David J. Pecker, is reputed to use the catch-and-kill tactic on behalf of allies, and is said to be a friend of Trump’s.

McDougal decided to tell her story in May 2016 — when Trump was plowing through the GOP primaries. Through a mutual friend, she found Davidson, who told her that a deal with AMI could result in a “seven-figure publishing contract” with an initial $500,000 payment in an escrow account. But after an AMI official interviewed her extensively, the company initially declined to buy the story and Davidson confessed that there was no escrow money. AMI explains that it chose not to publish the story because it could not be verified, but concedes discussing McDougal’s allegations with Cohen “as part of its reporting process.”

Weeks later, though, when McDougal was in negotiations with ABC News, Davidson informed her that AMI had a new proposal: AMI would buy her story but not publish it owing to Pecker’s relationship with Trump. The company would pay $150,000 (a sizable chunk of which went to Davidson). The deal was especially attractive to the model-turned-fitness-instructor because she was additionally promised that AMI would run her fitness columns and feature her on at least two publication covers. As the details were being ironed out on August 5, 2016, Davidson was in email and phone contact with Cohen, assuring him the deal was done. McDougal signed it the next day. The story was buried but the fitness columns and covers never materialized.

Interestingly, just yesterday, the Wall Street Journal broke news about another NDA cobbled together by Cohen and Davidson. Turns out that in late 2017, Cohen negotiated a $1.6 million hush-money pay-off by his client, Elliott Broidy, a top Republican fundraiser with close ties to Trump. Like Cohen, Broidy is a deputy finance chairman for the Republican National Committee — or at least he was until Friday, when he resigned after the NDA story surfaced. Broidy helped the Trump campaign’s joint fund with the GOP raise $108 million during the 2016 campaign.

The silenced beneficiary of the NDA is a different, currently unidentified former Playboy model, who became pregnant during an extramarital affair with Broidy. The model, who apparently terminated the pregnancy, was represented by Davidson. And here’s a coincidence for you: The NDA is rife with pseudonyms. Broidy and the model are referred to, respectively, as “David Dennison” and “Peggy Peterson,” the same names used in the Trump–Clifford NDA. If that’s not enough camouflage, the lawyers have phony names, too — Cohen is listed as “Dennis Donohue,” and Davidson as “Paul Patterson.” Cute, no?

If a lawyer is involved with a client in a criminal conspiracy, the crime-fraud exception to the attorney–client privilege strips their communications of privileged status.

As I explained earlier this week, the only thing protected in a lawyer’s office are attorney–client communications and work product. If Cohen had incriminating items unrelated to attorney work in his office, being a lawyer does not shield him from liability. Furthermore, if there is no attorney–client relationship on a particular matter, there is no privilege. Trump and Cohen both say that Cohen did not tell Trump about the Clifford arrangement. Sounds implausible, but on its face it means there was no attorney–client relationship regarding that transaction.

More important, if a lawyer is involved with a client in a criminal conspiracy, the crime-fraud exception to the attorney–client privilege strips their communications of privileged status. It seems evident that prosecutors are investigating on the theory that Clifford, McDougal, and perhaps others were defrauded or extorted into silence. The fact that they accepted money does not foreclose the possibility that their agreement to remain silent was procured, in part, by trickery or threats.

When Hillary Clinton inserted lawyers at various stages of her email scandal, in order to conceal the mishandling of classified information, the destruction of government records, and the obstruction of investigations, some of us pointed out that when lawyers become actors in criminal schemes, there is no privilege. That’s still true.

No wrongdoing has been established at this point. But the SDNY investigation is a serious matter.

Editor’s Note: This piece originally mis-stated the date that the Wall Street Journal learned of the non-disclosure agreement signed by Stephanie Clifford. It has been corrected.

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