President Trump’s ability to blame his former lawyer Michael Cohen for campaign finance violations may depend on whether Cohen was acting as a lawyer for Trump or as his “fixer.”
While Trump can claim he relied on his attorney and believed his actions were legal, it is unclear whether that strategy will be successful.
It’s clear why Trump is pursuing the strategy. Prosecutors have to prove that Trump knew the payments were for the purpose of influencing the 2016 election and that he was aware doing so was illegal. “This kind of specific-intent crime can be defended on the issue of whether the subject knew that the conduct was unlawful,” Kendall Coffey, a former U.S. attorney for the Southern District of Florida, told the Washington Examiner. “So if then-candidate Trump were advised by a lawyer that he trusted that [the payments are] not a violation of the law, that could be part of a defense that Trump could allege.”
[Read: Former Trump fixer Michael Cohen gets 3 years in prison]
Coffey, who was appointed as U.S. attorney by former President Bill Clinton, said that the argument Trump relied on the advice of his lawyer was a “potential defense.”
In a pair of tweets Monday morning, Trump said the payments to two women who claimed to have had affairs with him were not campaign contributions, but rather a “simple private transaction.” The president also sought to place the blame on Cohen, his longtime attorney and consigliere, saying it’s his “liability if he made a mistake.”
Trump also stressed in an interview with Reuters that as a lawyer, Cohen was “supposed to know what to do.”
“That’s what you rely on people for,” he said. “That’s what you pay lawyers for.”
But questions remain as to what Cohen’s relationship with the president was when the two discussed the possible payments to porn star Stormy Daniels and former Playboy model Karen McDougal.
“It would be relevant to know if Cohen was providing legal advice, and it would presumably be the position of Donald Trump that he was,” Coffey said. “If he was strictly acting as an intermediary, as a fixer rather than as a lawyer, then that could revise the equation. But they had a longstanding attorney-client relationship.”
A “starting point” for federal prosecutors, he continued to press Cohen for more details on his advice.
“Cohen might well say, ‘I don’t know anything about campaign finance laws. I didn’t give him any advice,’” Coffey said. “Or he could say, ‘We both know what we did was illegal.'”
In an email to the Washington Examiner, Robert Mintz, a federal prosecutor during the George H.W. Bush and Clinton administrations and a former assistant counsel to a GOP governor of New Jersey , said that to successfully mount the advice of counsel defense, a person has to demonstrate that they acted on legal advice provided by their lawyer and that they gave their lawyer “complete and truthful information with regard to the advice they were seeking.”
Additionally, “there has to be an actual attorney-client relationship actively at play,” he said.
“In this case, President Trump would have to establish that Cohen was acting as an attorney, and not merely as an employee, and that the President sought, received and relied on legal advice from Cohen with regard to the legality of the payments,” Mintz said.
But Mintz warned that legal strategy could be a “risky gambit,” since attorney-client privilege is waived once an advice of counsel defense is raised.
At issue for Trump and Cohen are payments made to Daniels and McDougal in the run-up to the 2016 presidential election. McDougal was paid $150,000 by American Media Inc., which publishes the National Enquirer, for the rights to her story about the alleged affair with Trump.
The other women, porn star Stormy Daniels, received $130,000 from Cohen not to speak publicly about a sexual relationship she allegedly had with Trump in 2006. Cohen admitted to facilitating the payments to the women and pleaded guilty to two campaign-finance charges.
A sitting president cannot be indicted, the Justice Department’s Office of Legal Counsel has said. That changes, however, once he leaves office, and some believe that the information laid out by federal prosecutors puts Trump in legal jeopardy.
“The president, if he were a private citizen, could be indicted for conspiracy to violate campaign finance laws and violate the tax laws,” said Gene Rossi, a former assistant U.S. attorney in the Eastern District of Virginia who ran as a Democrat for lieutenant governor of the state in 2017.
Federal prosecutors have looked into the statute of limitations for campaign finance violations, indicating Trump could face charges if he is not re-elected in 2020, according to the New York Times. Rossi said that a “possible defense” for Trump could be that he relied on his attorney for advice regarding the legality of the payments, but cast doubt on whether he would be successful.
“The facts in this case suggest that that defense is not very strong,” he said, “because you’ve got corroboration, because you’ve got him on tape, the false documents saying it was legal fees when it was to put money back in his pocket.”
“All that suggests to me is that defense will just not carry the weight at the end of the day,” Rossi continued. “That dog won’t hunt.”
