ChrisWeigant.com

Trump Can't Have It Both Ways

[ Posted Thursday, April 26th, 2018 – 16:46 PDT ]

Today, Donald Trump shifted his publicly-stated position on the Stormy Daniels lawsuit in what could turn out to be a major way. While chatting with his buddies on the Fox News morning show, Trump admitted that his "fixer" lawyer Michael Cohen was indeed representing him in the Stormy Daniels affair. Trump's exact words were: "He [Cohen] represents me -- like with this crazy Stormy Daniels deal, he represented me." It's tough to square this with all the other claims Trump has made about the case, to put it mildly. Trump's position seems to be evolving over time.

Trump's initial position was the most laughable one. Trump stated that the sexual encounter never happened, he had never heard about the non-disclosure agreement or the payoff of $130,000 to Stormy Daniels, which was paid out of the goodness of his personal lawyer's heart, from money Cohen had to borrow from a home equity line. The whole thing was a gigantic surprise to Trump, in other words.

There are big legal problems with this position, as I'm sure a few lawyers have explained to him by now. The non-disclosure agreement (or, as her lawyer calls it, the "hush agreement") was supposed to be between three parties: Cohen, Daniels, and Trump. Trump never signed it, but the language within the agreement specified three parties. If Trump truly didn't know about it, and Cohen set it all up on his own, then he would be guilty of malpractice, if not fraud. He would be making an agreement for Trump, as Trump's lawyer, without telling Trump about it at all. He would also be misrepresenting Trump's position to Daniels. Any of these, if true, would likely lead to Cohen's disbarment or even criminal charges being filed against him.

Also problematic is the fact that if Cohen truly were acting alone, then there would be no attorney-client privilege involved at all. In a very basic way, if there's no client, then there's no privilege. This is one of the things that has apparently been explained to Trump, and likely caused him to sing a different tune.

If, as Trump now claims, he was indeed represented by Cohen in the "crazy Stormy Daniels deal," then Cohen would have had to have informed Trump that it existed and what the details of the agreement were. Again, it would be legal malpractice if this didn't happen. A lawyer cannot represent you and make deals for you without your knowledge, especially considering that the agreement was supposed to promise certain actions or inactions by Trump himself. Which brings us to the next unbelievable claim -- that Cohen paid $130,000 for a sexual encounter that Trump maintains didn't even happen out of Cohen's own pocket. If Trump were aware of the agreement beforehand, he had to have been aware of the hush money to be paid out. If Trump didn't foot this bill in some way then we are supposed to assume that his lawyer is the most generous member of his profession of all time.

The payout itself is legally problematic no matter how it happened. This is why the F.B.I. is interested, one assumes. Seeing as how the money was paid out mere days before the election, and seeing as how it was obviously paid to provide a political benefit for Donald Trump (burying a scandalous story), it quite likely falls under the definition of a campaign contribution. Whether Trump paid it or Cohen paid it might not even make a difference, because either way it might fall afoul of campaign finance laws.

The most likely explanation is that Trump somehow reimbursed Cohen for the $130,000 of hush money. Cohen made a very careful statement when the whole story broke, averring that neither the Trump organization (the family business) or the Trump campaign paid out the money. This statement had a rather large omission: Trump himself. The rumors are that Trump had set up a slush fund of money that Cohen could draw on for hush money and other coverup activities -- which in itself is a rather damning thing, if true. Think about it: Trump must have gotten so used to paying out large sums of money to keep people quiet that he actually institutionalized the process by setting up a dedicated account for just this purpose. That implies a whole lot of payouts. But at this point, it's just a rumor.

If Trump did foot the bill in some way, there will likely be bank records of such a transaction. It's hard to see Trump withdrawing $130,000 in cash and handing it over to his attorney in a paper bag, really. And the F.B.I. now has all Cohen's records, which likely documents the other side of this transaction. So sooner or later Trump may change his tune again, and admit that he did indeed foot the bill for the hush money paid to Daniels. Believing otherwise really strains credulity, to put it mildly, and if the F.B.I. already has evidence of the money flow, then lying about it in public continually isn't going to help Trump's legal position.

Perhaps some legal advisor (Rudy Giuliani, perhaps?) explaining the facts of the law to Trump caused him to shift his position today. Or perhaps Trump was just winging it, again. Trump has been whining about how attorney-client privilege is dead, but he can only make this complaint if it existed in the first place. Cohen freelancing cleanup work on Trump's behalf without his knowledge was always a stretch, after all. By claiming Cohen was indeed representing Trump in the Stormy Daniels affair, Trump is on more solid ground in claiming attorney-client privilege. But he also opens himself up to being personally deposed in the Stormy Daniels court case by doing so. If he was indeed a party to the agreement and approved of it beforehand, then that's going to be an issue for Stormy's lawyer to explore at length (with Trump under oath). Because Trump can't have it both ways -- he was either a party to the agreement, represented by his lawyer, or he was not. If he wasn't, he could pin the entire thing on Cohen and deny all knowledge of any details. If he was -- as he just admitted today on Fox News -- then he is responsible for what was contained in the non-disclosure agreement, which is at the heart of the Daniels court case. By claiming attorney-client privilege, Trump puts himself squarely in the crosshairs of her attorney. He no longer can claim not to be a party to the court case, in other words. Unless he changes his story tomorrow, that is (which, with Trump, is always a possibility).

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

7 Comments on “Trump Can't Have It Both Ways”

  1. [1] 
    neilm wrote:

    O, what a tangled web we weave when first we practice to deceive!

    Walter Scott

  2. [2] 
    TheStig wrote:

    O, what a legal mess we own when we stoop to hire Mr. Cohen!

  3. [3] 
    Paula wrote:

    https://www.dailykos.com/stories/2018/4/27/1760302/-New-information-shows-that-Russian-lawyer-from-Trump-Tower-meeting-had-top-Kremlin-connection

    Between the incoming from various investigations and lawsuits and Blotus' tendency to jump in and screw himself, we've got multiple collisions brewing.

  4. [4] 
    Kick wrote:

    Due to Trump's pathological lying, Michael Avenatti can have it both ways and all kinds of ways, and he's going to tear Benedict Donald and his "fixer" some new ones. #basta

  5. [5] 
    TheStig wrote:

    Paula -3 It's like watching Titanic and Hindenburg in the same movie plus an opening short where the guy pulls the steering wheel off the connecting rod. Guilty pleasure.

    Kick-4 "he's going to tear Benedict Donald and his "fixer" some new ones."

    Doing that would be like pulling the steering wheel off the connecting rod. Avenatti is a professional race driver and certainly knows how to steer powerful, highly strung machines where he wants them to go.

  6. [6] 
    TheStig wrote:

    "Think about it: Trump must have gotten so used to paying out large sums of money to keep people quiet that he actually institutionalized the process by setting up a dedicated account for just this purpose. That implies a whole lot of payouts. But at this point, it's just a rumor."

    A whole lot of Institutionalized Payouts + Executed Searches + a Whole Lot of Lawyers means it isn't going to stay a rumor much longer.

    I could see Trump being first President to flee the country.

  7. [7] 
    Kick wrote:

    TS
    5

    Doing that would be like pulling the steering wheel off the connecting rod. Avenatti is a professional race driver and certainly knows how to steer powerful, highly strung machines where he wants them to go.

    I know, right!? It's awesome to watch a true artist roll over Trump and Cohen... no skidmarks whatsoever. :)

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