A Modern Mafioso
Michael Cohen May Learn the Hard Way That There’s No Such Thing As Consigliere-Client Privilege
While Cohen was with friends puffing cigars uptown, his lawyer was in court as the feds laid out “the result of a months-long investigation into Cohen” and his “crimes,” plural.
Before he became President Trump's self-styled consigliere, Michael Cohen made a fortune in the taxi business.
So, he certainly had the means and the ability to have hopped a cab down to Manhattan federal court on Friday morning to answer a judge’s queries regarding what appeared to be Trumpian exaggerations.
Instead, Cohen remained uptown, chatting with the president on the phone and lounging with friends in the springtime sun outside his luxury Manhattan hotel. He did this even though the prosecution had filed papers attesting that it had established probable cause to believe he had committed multiple federal crimes.
The president’s lawyer left his own lawyer, Todd Harrison, to explain to a dubious Judge Kimba Wood how he figured that the FBI had seized “thousands, if not millions” of documents from “multiple clients” when it executed search warrants at Cohen’s home, office, hotel room and safety deposit box last Monday.
Harrison made that claim while seeking a temporary restraining order to get prosecutors to hold off on examining the materials the FBI had seized. The suggestion was that the sheer volume of the material and the number of cases they involved placed attorney-client privilege in jeopardy.
Unless, Cohen’s lawyers said, they had a hand in deciding which materials should be excluded.
In their response papers, the prosecutors countered, “Cohen is not a criminal defense attorney… and is being investigated for criminal conduct that largely centers on his personal business dealings. Based on information gathered in the investigation to date… Cohen has exceedingly few clients and a low volume of potentially privileged communications."
The prosecutors added, “Cohen has told at least one witness that he has only [one] client – President Trump.”
And Cohen’s HUGE case with Trump may not fall under constitutional safeguards.
“There is reason to doubt that even communications with his only publicly identified client regarding payments to Stephanie Clifford, who is also known as Stormy Daniels, would be protected by attorney-client privilege,” the prosecutors wrote.
Trump himself had helped make that possible.
“Among other things, President Trump has publicly denied knowing that Cohen paid Clifford, and suggested to reporters that they had to ‘ask Michael’ about the payment,” the court papers say.
Cohen may well learn the hard way that there is no such thing as consigliere-client privilege.
The prosecution's submission also called into question Cohen’s contention regarding the number of documents. The judge asked Cohen’s lawyer how he came by that estimate. Harrison had no immediately clear answer.
“How do you know there are thousands if you can’t answer my question?” Wood inquired.
“That is our best understanding,” Harrison said.
Wood was not going to leave it there. The president to whom Cohen has sworn his undying loyalty may deal in unending lies and exaggeration, but Manhattan federal court remains a realm of truth.
“How did you get that understanding?” Wood asked.
“Discussion in the defense team” Harrison said.
“Really,” Wood said. “Who in the defense team?”
“Judge, I’m not prepared to get into discussion of the defense team,” Harrison said. “That’s an approximation. I don’t have the exact number for you. It might be less than a thousand. I don’t know for sure.”
“What I need to know is whether you had a basis as an officer of the court to tell me there are ‘thousands and thousands of privileged documents,’” Wood said.
As 3 p.m. approached, Wood called a recess, saying she wanted a list of Cohen’s clients when the hearing resumed at 4 pm.
“I can’t do that by 4 o’clock,” Harrison said.
“I believe you can, so I want you to try,” Wood replied.
Harrison could have gotten on his cellphone to Cohen, who could have just cabbed it down to the courthouse and provided the judge with a list of his clients, along with a more authoritative estimate of the number of documents involved.
But Cohen stayed uptown and was photographed sitting outside Loews Regency Hotel with some pals who were smoking cigars. He does not look exactly carefree in the picture, but he also does not look like a man who fully appreciates the import of a prosecution document that repeatedly indicates that he faces more than one kind of serious trouble.
“The searches are the result of a months-long investigation into Cohen, and seek evidence of crimes, many of which have nothing to do with his work as an attorney, but rather relate to Cohen’s own business dealings,” the document says.
Note the plural “crimes” and the word “many.”
Back down at the courthouse, the hugeness of the case had become apparent in the trembling hands of the manifestly un-Trumplike attorney, Joanna Hendon, who had been retained to represent his interests at the hearing. She spoke to the court before the break of “the exceptional nature of my client.”
“What’s at stake?” she asked. “The viability of this prosecution. It has to be done right. He is the president of the United States.”
When the court reconvened at 4 pm. Harrison said he had been unable to assemble a full and reliable list of clients.
“Do you have access to your client over the weekend?” Wood asked.
Maybe Harrison was unaware that Cohen was at almost that very moment being photographed chilling in the sunshine uptown.
“I believe I’ll have access to him over the weekend,” Harrison said.
Wood said that she intended to make the client roster public. That may include fellow GOP fundraiser Elliott Broidy, for whom Cohen allegedly arranged a $1.6 million payment for a former playmate who had become pregnant.
Wood allowed that she would redact from the list those clients whose very names would make clear the nature of their case. Wood said she understood concerns regarding the privacy of the clients in question if indeed there were more than one. She did not add that she had once had her own personal life muddied and smeared by the New York Post.
At the time, she had already become well known. President Clinton had moved to nominate her for attorney general only to reconsider after it turned out she had hired an undocumented immigrant as a nanny. The previous nominee, Zoe Baird, had been dropped for her own nanny trouble, the whole thing being called Nannygate even though such hires were not then illegal.
Wood now sits on the bench as a decent person made better by adversity. She is a judge who is not judgmental, but judicious. She is also a believer in fact.
“Your inability to answer these questions suggests that Mr. Cohen should be in court next time,” Wood said.
So, on Monday afternoon, the self-styled consigliere will be in the courthouse from which any number of actual gangsters have been sent to prison.
But hey, maybe along with calling Cohen on Friday to “check in,” Trump was giving his consigliere an unspoken message by pardoning Scooter Libby, the former consigliere to Dick Cheney turned convict for perjury.
One thing Trump would not want would be for Cohen to become so much like a real modern Mafioso that he turns rat.