We live in extraordinary times. We all heard the recent news about the FBI raid on President Donald Trump’s personal lawyer, Michael Cohen. (Editor’s note: This Michael Cohen is not to be confused with our friend and frequent contributor Michael Cohen of Englewood and the Simon Wiesenthal Center) Its meaning has made a sport of speculation as to the basis, its goal and the ultimate outcome. There are many missing pieces and moving parts. It’s a puzzle, and while some of those jigsaw items clearly are, or will soon become defined, others will have no answer for weeks, months—or maybe even years. For Jews, there is an added dimension of angst. The lawyer, Michael Cohen, is identifiably Jewish by name, which leads to many other questions—and conclusions. Not only because the current administration has already been linked, fairly or not, to “anti-Semitic dog whistles,” but ironically, alternatively—but perhaps out of the same motivation of those who believe that Jews have extraordinary power and access—to the belief that the administration is doing the bidding of Jewish interests.
Let’s start with the facts as they exist. 1) Michael Cohen has been Donald Trump’s personal lawyer long before Trump even considered a second career in politics. He has worked with Trump for over a decade and got his start with the organization as general counsel for his casino interests after working as an attorney for a company that funded taxi cab medallion mortgages. Eventually, Trump became Cohen’s single client. 2) As anyone familiar with mob movies knows—or anyone simply following the various John Gotti and other Mafia trials over the years is aware—lawyers are generally a no-fly zone. The attorney-client privilege is resolute, and lawyers, clients and criminals—and even prosecutors and judges—know that it has to be that way in order for the system to work. The U.S. Constitution obligates every citizen the right to counsel and the right against self-incrimination. In order for lawyers and clients to be secure that any individual on trial is given a full and fair trial, communications with attorneys are verboten for evidence, save a few extremely narrow exceptions. 3) Cohen took the extremely unusual step of admitting to the press that he personally paid an alleged former sexual liaison (Ms. Stephanie Clifford, aka Stormy Daniels) of the president a settlement, which he said was more than $130,000. Cohen has maintained that Trump did not have an affair with Daniels in 2006, as she alleges, but that he paid her anyway, shortly before the 2016 election. He said he paid her out of personal assets without the knowledge or approval of the president.
Besides being suspicious, the admission itself indicates a violation of at the very least attorney rules, which do not permit a lawyer from becoming compromised by personally obtaining an interest in the controversy involving his client. 4) Cohen readily identifies as a Jew and has expressed his Judaism as “a child of a Holocaust survivor” who “has a close connection to Judaism.” While not traditionally observant, Cohen, like many others in the president’s inner circle, comfortably identifies himself by his Jewish heritage.
There has been speculation that the Cohen raid is related to the special investigation by Robert Mueller into Russia’s attempts to infiltrate and influence the 2016 presidential election. This is highly unlikely. First, Mueller announced last week that Trump personally is not a criminal target of the investigation. Second, even if he was it would be a highly inefficient process to raid his lawyer’s files to gather evidence, since presumably any work product obtained would be of matters directly covered by attorney/client privilege and accordingly would be inadmissible at trial. The narrow exception would be if the attorney was acting on instructions of, or in concert with, his client to commit criminal acts, but there is no indication that that is the case—not from Trump, not from Cohen and not from the government. Additionally, while Mueller signed off on the application for the search warrant, the application was not processed by Mueller himself. Accordingly, it is much more likely that the subject matter falls outside the scope of the special investigation.
What seems much more plausible is that the FBI is digging into the payment that Cohen admitted making to settle the Stormy Daniels case. What remains unclear is why the payment was made. It is a scandal in search of a crime. No one seriously cares if Donald Trump cheated on his wife. He was not elected president for his morals. Even by Daniels’ take the sex was consensual. So why pay her off not to talk? Also, taking Cohen’s explanation at face value, why risk his legal license by personally creating a fake persona for Trump, a dummy corporation, and the effort and expense of a second mortgage on his home to pay a personal debt without his client’s approval or consent on his own behalf? What did he have to gain by doing so? And why would he take such extraordinary steps outside the bounds of legal propriety? At the very least, Cohen risked his legal license. The rules for lawyers are clear…we cannot become personally compromised with our clients’ controversies because doing so creates a clear conflict of interest. If we have a personal stake in the outcome of our clients’ cases we may substitute, even without intent, our clients’ best interest in favor of our own. That is why we cannot lend money to our clients, personally pay their expenses or, like in this case, settle matters out of personal funds on our clients’ behalf.
However, the FBI seems to believe it is more than ethics involved in Cohen’s actions. In order to gain a search warrant, a prosecutor would be required to convince a federal magistrate that probable cause exists that the subject of the warrant committed criminal acts. The warrant requires concrete evidence so as to be more than simply a fishing expedition to obtain evidence. Further, especially in a matter involving a lawyer, a prosecutor would have to show the likelihood that less intrusive enforcement techniques—like a subpoena—or demand to preserve evidence would likely fail. Prosecutors need to demonstrate that absent a search warrant evidence might be destroyed or otherwise go missing if they pursued a less-aggressive option.
When Cohen admitted to paying Daniels off, it opened himself up for inquiry while ironically, at the same time, insulating to some degree the president. Trump has said he was not aware of the payoff and did not authorize it. If he had, he may have acted improperly, but likely not criminally; but since Cohen is saying he did it himself, it opens himself up to both criminal and ethical charges. Either way, the outcome will not be good for Cohen. It may be chivalrous as he throws himself under the bus, but apparently the FBI is not so convinced that chivalry exists at the federal level. In any case, the admission opens up the inquiry that Cohen may have committed bank fraud, tax fraud, money laundering or who knows what else. At the very least, with the raid, suddenly his legal license is the least of Cohen’s problems.
While Cohen has deep personal tzuris, we are left with the age-old question: “Is it good or bad for the Jews?” Well, to some degree, any scandal involving a highly public identifiable Jew harms us by association. Haters will hate—another Trump Jew in scandal. It could lead to anti-Semites both from the right and from the left blaming the influence of Jews in the administration. The left may point to the “corrupt” Jews as part of Trump’s inner circle—even if the number of potential corrupt Jews implicated in this case is singular, and they lose sight of the fact that Cohen was a registered Democrat most of his adult life. While those on the right could point to Cohen’s actions as undermining the effectiveness of the president, just as Jared Kushner has been blamed in different circumstances. Of course, from that prism, critics fail to see that the people most in jeopardy of losing their esteem and freedom are the Jewish advisers themselves, and by Cohen’s own actions and words the president has actually been insulated—unless the feds really come up with something damning.
By Stephen Loeb
Stephen R. Loeb is the managing partner of the Law Office of Stephen R. Loeb with offices in New Jersey and New York. He can be reached at [email protected] or at (212) 766-5268.
