Witch Hunt

by Gregg Jarrett

  Two days before the inauguration, Cohen announced that he was leaving the Trump Organization to serve as Trump’s personal lawyer. Despite his efforts to build relationships with others who joined the administration, he had effectively been sidelined.30

  After the inauguration, Cohen set up a solo practice, taking an office on the twenty-third floor of Rockefeller Center with the law and lobbying firm Squire Patton Boggs. They agreed to a “strategic alliance,” with the firm paying Cohen $500,000 a year plus a percentage of fees from five clients he had brought in. But he “maintained complete independence” from the firm, according to a search warrant, locking his office with a key no one else had, doing business on a separate computer server.31

  His financial situation was precarious due to severe losses in the taxi business. Cohen’s posh Manhattan lifestyle was at risk. He approached major US corporations with a blunt pitch: “I have the best relationship with the president on the outside, and you need to hire me,” a person “familiar with Mr. Cohen’s approach” told the Wall Street Journal.32

  Touting his status as “the president’s lawyer,” uniquely able to help clients understand how Trump operated, he snagged Ford, AT&T, and the pharmaceutical company Novartis AG. Uber turned him down because of his ownership of taxi medallions, an obvious conflict of interest. He buttonholed Cuban, saying “I want you to know I’m out looking for deals.” Cohen urged Cuban to hire a health industry firm he’d taken on as a client. “Michael is a hustler,” Cuban said. “That’s who he is, that’s what he does.”33

  For a while his aggressive approach worked. AT&T paid him $50,000 a month and Novartis AG paid him $100,000 a month, both for a year. A lobbying deal with the investment management firm Columbus Nova netted him seven monthly payments totaling $583,332 for January through August 2017. He also earned $600,000 from a South Korean aircraft manufacturer. The payments were for “political consulting work, including consulting for international clients on issues pending before the Trump administration.”34 The money was routed through a shell company called Essential Consultants LLC, which Cohen had created to route money to Stormy Daniels.35

  Cohen’s contact with Trump dwindled after the inauguration. He complained that the boss “was not calling him and not helping him.” His efforts to build a robust base of clients stagnated; some canceled their deals, unimpressed with his services. Squire Patton Boggs ended its relationship with Cohen in March 2018. The raids on his home, office, and hotel room took place on April 9.36

  The next day, legal scholar Jonathan Turley sounded a warning for Cohen and Trump, saying the involvement of the SDNY prosecutors was a move “as cunning as it is hostile. The timing and manner of the raid have all the characteristics of a wolf pit and Trump—not Cohen—could be the prize.” A wolf pit, he pointed out, is a hole dug by farmers with sharp spikes at the base, branches covering the hole, and a juicy piece of meat on the top.37 Cohen was the bait. The wolf lunges for the steak, falls in, and the more he thrashes about, the more he injures himself.

  “Like any good wolf trap, this set-up, first and foremost, protects the hunters,” Turley said. “By referring the matter, Mueller and Rosenstein protected themselves from criticism of expanding the investigation.”38

  Mueller had no compelling case against Trump for collusion; perhaps he could entice the enraged president to obstruct justice by rescuing his longtime lawyer. The wolf trap nearly worked. Enraged, Trump blasted the raids as “a disgraceful situation” and “an attack on our country in a true sense.” He thundered about the possibility of firing the special counsel: “This is really now on a whole new level of unfairness.”39

  Cohen had relished his various roles with Trump—friend, fixer, business associate, attorney—but his “bizarre concept of representation is so convoluted and conflicted that, after months of litigation, we still are unclear as to whether Cohen was acting for himself or his client or his shell company,” Turley said.40 Mueller, using the SDNY by proxy, had stripped away the attorney-client privilege that should have attached to their relationship, especially regarding possible payments to Daniels and McDougal. Cohen’s only hope was to make a deal with Mueller or obtain a pardon from Trump.

  Cohen’s Secret Tapes

  Mueller’s investigation into Cohen had actually begun nine months before the raids, using the Steele “dossier” as its basis. On July 7, 2017, federal agents had obtained warrants allowing prosecutors to access Cohen’s Gmail account for messages from the start of 2016 through July 2017. Mueller got the SDNY involved, and they obtained a warrant for the same email account through the end of February 2018. In addition, they used a “pen register” to log phone calls he made and received and a “triggerfish” cell phone surveillance device to locate him while he was staying at the Loews Regency hotel in New York.41

  The investigation of collusion now morphed into two prongs: campaign finance violations and Cohen’s complex business interests.

  He owed $22 million on taxi medallion loans; in an effort to avoid the debt, he had claimed his net worth had cratered, going from $75.9 million in 2014 to negative $12.2 million by 2017, due to the depreciation of the taxi medallions and real estate. But he was allegedly hiding his assets. Court documents quoted FBI forensic accountants saying that Cohen had had approximately $5 million in cash as of September 30, 2017.42

  The alleged campaign finance violations got the most attention from the press, since they involved sex. Porn star Daniels claimed she had had a single encounter with Trump in 2006. Playboy model Karen McDougal claimed she had had a ten-month affair with Trump that had ended in April 2007. Trump denied having had a sexual relationship with either woman, and Cohen tried to buy their silence.43

  The puerile melodrama created by Daniels and her seedy attorney, Michael Avenatti, took cable TV by storm in March 2018, after Daniels filed a lawsuit against Trump, alleging that Cohen had “intimidated and coerced” her into signing a nondisclosure agreement just a few weeks before the election in return for a payoff of $130,000. Soon after came the raid, which yielded documents involving Daniels and McDougal that Mueller twisted into campaign finance violations.44

  Cohen had the remarkably poor judgment to trust the leadership of his defense team to attorney Lanny Davis, a longtime Clinton sycophant, still vexed at the trouncing his beloved Hillary had received at the hands of Trump in the 2016 election. Cohen told the press that Davis was representing him free of charge. That should have been Cohen’s first clue that he was expendable.

  Cohen and Davis made the perfect couple: two conflicted and compromised lawyers, loyal to a fault until it was not in their best interests. Both are like the pilot fish that hang around sharks, happy to nibble on the debris that attaches itself to the skin and teeth of the apex predators, providing valuable services without being eaten themselves. For decades, Davis had sucked up to the Clintons and had fully expected to be an adviser to the president when Hillary moved back into the White House. Cohen had attached himself to Trump, who had various lawyers but gave him the chores that needed the finesse of a New York fixer, not a legal scholar. The ticklish problems presented by Daniels and McDougal were perfect examples.

  The media embraced the sex and campaign finance story with zeal, making the dirty duo of Daniels and Avenatti round-the-clock circus stars. In an example of collective delusion, CNN anchors promoted Avenatti as Trump’s rival for the presidency in 2020.45

  But Mueller’s tactics of seizing privileged documents should have sent shudders down the spine of every lawyer in America. Among the items confiscated were hundreds of audiotapes with clients and reporters who had not known they were being recorded; they included a dozen tapes of conversations with Trump, released by a judge to federal investigators after Trump withdrew his objections. Davis claimed that Cohen had secretly recorded people in lieu of taking notes and had had no intention of “publicizing” them, “nor any intention to ever deceive anyone.” Trump certainly felt deceived. He tweeted: “What kind of lawyer would
tape a client? So sad!” Most clients expect that their conversations with their lawyers are privileged. Though not illegal—New York is a “one-party” state, which allows recording as long as one party to the conversation knows—it was an egregious breach of trust. Cohen had violated a fundamental legal ethic.46

  The tapes revealed that in September 2016, Cohen had suggested to Trump that they buy the rights to McDougal’s story, which had been purchased for $150,000 by National Enquirer, owned by American Media, Inc. (AMI). The chairman of AMI, David Pecker, had been Trump’s friend since the 1990s. However, there was no indication by Trump in the recorded conversation that he knew she’d sold her story to AMI. To carry out a possible purchase, Cohen created a shell company called Resolution Consultants LLC in Delaware. However, Pecker declined to sell, and the story was never published.47 Cohen dissolved that company on October 17, 2016, and created a second shell company, Essential Consultants LLC, which he used to pay Daniels, drawing on his home equity line of credit.48

  Cohen had also surreptitiously recorded conversations with reporters, including a nearly two-hour conversation with CNN’s Chris Cuomo talking about negotiating the payment to Daniels in October 2016. “I did it on my own,” he told Cuomo. “It wasn’t for the campaign. It was for him [Trump].”49 That comment would be exculpatory in any potential trial regarding violation of campaign finance laws. Cohen would later complain to friends that Trump had never repaid him. That wasn’t true; he had been reimbursed through a monthly retainer. The unethical taping and willingness to go into debt to pay off Trump’s accuser revealed two sides of Cohen’s character: loyalty undermined by deceit.

  By May 2018, Cohen no longer represented Trump. When attorney Lanny Davis entered the picture, he was the perfect symbol of Cohen’s alienation from Trump’s circle of protection. Davis had become friends with Hillary Clinton at Yale Law School and worked as a spokesman and special counsel for Bill Clinton in the 1990s. Known as a shill for whoever anted up his fees, injecting himself into controversies, masquerading as a political analyst, Davis has been a Washington fixture for decades.50 A story by the New York Times once described him as a “front man for the dark side,” representing dictators in Equatorial Guinea and Ivory Coast. In 2017, Davis was lobbying on behalf of Ukrainian oligarch Dmitry Firtash, who had been fighting extradition to Chicago to face charges of racketeering and money laundering in relation to Russian organized crime.51

  “Lanny Davis is just a face that reflects the grime and sleaze that lies at the core of our political culture,” said journalist Glenn Greenwald. “He’s presented by numerous media outlets as an independent analyst who opines on the news of the day—yet does so almost exclusively in order to promote the interests of those who are paying him, relationships which are often undisclosed.”52

  Davis’s most famous clients are the Clintons. A 2010 email released by the State Department from Davis to “my dear friend” Hillary describes their close relationship. Asking Clinton to speak with a reporter on his behalf, Davis concluded, “Aside from Carolyn, my four children, and my immediate family, I consider you to be the best friend and the best person I have met in my long life.”53 Another email uncovered by Judicial Watch was just as cringe inducing: “Thank you H for who you are and what you do,” Davis wrote, followed by another exchange: “PS. I swear you look younger and better every time I see you. Good night, dear Hillary. Lanny.”54

  Perhaps in representing Cohen, Davis saw an opportunity to humiliate Trump and avenge Hillary’s loss. He announced that his new client had “turned a corner in his life and he’s now dedicated to telling the truth.” A few weeks later, Davis gave CNN the tape of Cohen speaking to Trump, a sign he was serving the media’s interests, not those of his client.55 The muddled audio lasted less than two minutes, with Trump heard to say that, if he was going to make any kind of payment, to use a check so there would be a paper trail—not the kind of thing someone would do if he was conspiring to commit a crime.

  Cohen was indicted August 21, 2018, on eight charges: five counts of tax evasion from 2012 through 2016; one count of making false statements to a bank regarding a loan; and two counts of violating federal campaign finance laws for paying a combined $280,000 in hush money to McDougal and Daniels. By paying the women himself, the government said, Cohen had exceeded the maximum allowable amount of contributions of $2,700 per candidate.56 The next day, Cohen pleaded guilty to all eight counts.

  Significantly, there was no “collusion”-related charge. The information filed by the government revealed new details about the payoffs.

  McDougal had sought to sell her story to the National Enquirer in June 2016. An editor and Pecker had notified Cohen. At Cohen’s urging and after his promise of reimbursement, the publication had bought McDougal’s rights to the story for $150,000 in early August. The rights were to be assigned to Cohen for $125,000.57

  The difference in the amount was related to additional rights AMI acquired for McDougal’s appearance on two magazine covers as a model and a health and fitness column, which she hoped would resurrect her modeling career. The deal by AMI editor Dylan Howard was made despite the fact that McDougal had offered no documentation that proved her alleged relationship with Trump.58

  But Pecker contacted Cohen, told him the deal was off, and asked him to tear up the agreement. Thus, Cohen never paid either McDougal or Pecker. The documentation was later found in the search of Cohen’s office.59

  On October 8, 2016, Cohen was approached by an agent and an attorney (not Avenatti) representing Daniels, who alleged that she had had sex with Trump at a celebrity golf tournament in Lake Tahoe in 2006. Daniels’s agent had also approached a National Enquirer editor, demanding $200,000. The editor had passed, pointing out that Daniels had called the report “bulls—” when approached by a TV show in 2011.60 A second statement provided to the media by her manager said, “I am denying this affair because it never happened.”61

  But after the Access Hollywood tape surfaced, putting Trump’s campaign into jeopardy, Daniels resurfaced. Cohen negotiated a $130,000 agreement to buy her silence in return for a nondisclosure agreement (NDA). In the tumult of the campaign, Cohen hadn’t paid her by October 26. Her representatives threatened to take Daniels’s story elsewhere. Cohen arranged a line of credit against his home mortgage and wired $130,000 to Daniels’s attorney. In so doing, he agreed in court documents, he had intended to “influence the 2016 presidential election.” He billed Trump for $130,000, plus a $35 wire fee and $50,000 for “tech services” performed during the campaign. He would end up being promised $420,000, paid in monthly installments of $35,000, for legal work performed over the course of twelve months for the Trump Organization.62

  At the same time as the Cohen raids, Pecker and the Trump Organization were subpoenaed for records related to the payoffs. Pecker was granted immunity in return for his testimony; he was not charged with a campaign finance violation.63

  Cohen faced a potential of sixty-five years in prison. By pleading guilty, he narrowed that to a range of three to five years. Davis described Cohen as feeling a sense of “relief” and “liberation” upon entering his plea. The “straw that broke the camel’s back” for Cohen was Trump’s supposedly disastrous summit with Putin in July, Davis said. After the press conference, Davis claimed, Cohen had become “very emotional,” a ludicrous embellishment dreamed up by a Clintonite to fit the news cycle.64

  Davis pointed out that Cohen had stood up in court and read a statement written by the prosecutors. “He stated under oath that Donald Trump directed him to commit a crime, making Donald Trump as much guilty of that felony as my client, Mr. Cohen,” claimed Davis.65 Perhaps the government had Cohen dead to rights on tax evasion and bank fraud. But the payments to Daniels and McDougal were not illegal. Cohen had pleaded guilty to two noncrimes, an indication that Davis was serving Mueller’s interests, not his client’s.

  Why were they noncrimes? Although Cohen initially had used his own funds, Trump had reimburs
ed him. Under the law, a candidate is allowed to spend an unlimited amount of his or her own money on his or her campaign. Moreover, paying money to someone in exchange for an NDA is not considered a campaign contribution at all, as long as there is a secondary or collateral reason for the payment. Trump’s reasons would include protecting his business and avoiding personal embarrassment to his wife and other family members.

  As former Federal Election Commission chairman Bradley Smith explained, “Not everything that might benefit a candidate is a campaign expense.”66 Such a payment can be a crime only if there’s a showing that the person making it “knowingly and willfully violated” the law. Campaign laws are exceedingly complex; few candidates understand them sufficiently to break them knowingly. Indeed, not many lawyers fully understand these complicated finance laws.

  It should also be remembered that the vast majority of campaign violations are civil cases with penalties assessed. For example, Obama’s 2008 campaign paid a $375,000 fine for taking $2 million in illegal contributions.67 Prosecutors would have to show that Trump had known the campaign laws and specifically intended to break them—something that would be exceedingly difficult, if not impossible, to prove.

  Smith, though not a Trump supporter, was concerned about the prosecutors’ actions: “I find the whole thing kind of disturbing—what seems to be almost a determination to use whatever laws we can find to get Trump because a lot of people know Trump’s such a bad guy, he must be violating the law, and even if he’s not, we have to get him anyways.”68