The following article by Aaron Blake was posted on the Washington Post website April 26, 2018:
President Trump, for the first time, said that Michael Cohen represented him in efforts to silence Stormy Daniels in an interview with “Fox & Friends” April 26. (Allie Caren/The Washington Post)
President Trump made a rare public comment about the Michael Cohen-Stormy Daniels case Thursday morning, playing down the lawyer’s work for him and insisting that he didn’t know about Cohen’s business activities.
But Trump also said something that would seem … less than ideal. While describing Cohen’s allegedly limited work for him — a “tiny fraction” of his legal work, Trump assured — Trump confirmed to “Fox and Friends” that Cohen “represented” him in the Daniels case.
“Michael would represent me, and represent me on some things,” Trump said. “He represents me — like with this crazy Stormy Daniels deal, he represented me.”
Daniels’s attorney, Michael Avenatti, said shortly after Trump’s interview that this constitutes a “hugely damning admission.” But does it?
To this point, Cohen has acknowledged having “facilitated” the payment, but Trump has said he didn’t know about it. It may seem obvious that Cohen was acting on Trump’s behalf — given that Daniels was making allegations against Trump, and Cohen worked for Trump. But legally speaking, it may matter that Trump acknowledged this action was taken in Cohen’s capacity as his attorney.
Experts generally agree that Trump faces an impossible choice. He can either disown Cohen’s actions — which would undermine both his claims to attorney-client privilege and the non-disclosure agreement that Daniels signed — or he can own them and potentially implicate himself in Cohen’s actions.
Former federal prosecutor Patrick Cotter said it makes sense for Trump to claim this so shortly after his lawyers asserted attorney-client privilege in the Cohen criminal investigation. But there’s a but.
“On the other hand, what lawyers do at the direction or with authorization of their clients are matters for which the client can be held accountable legally,” Cotter said. “If I authorize or direct my attorney to threaten what a later court determines to be illegal actions against a third-party, I can be held legally accountable for that potential crime; if my attorney makes statements on my behalf, I can be held accountable for them if I authorized them.”
Former Justice Department official Harry Litman also said it could adversely affect Trump, though not necessarily so. Although it could make Daniels’s non-disclosure agreement more enforceable — given that he’s confirming that Cohen was acting on his behalf — Litman said it also could implicate Trump in the payment, at least to some extent.
But Litman also said Trump’s choice of words could make it difficult to draw any firm conclusions. “Notice how he’s hedging; you could read the statement as ‘Michael must have been representing me,’ ‘It was the sort of thing he would do for me,’ etc.,” Litman said, “which isn’t the same as ‘I knew he was representing me at the time.’ ”
As Stormy Daniels continues to speak out about her alleged affair with President Trump, he is staying largely silent. (Jenny Starrs/The Washington Post)
David Super, a law professor at Georgetown University, said that the comments don’t seem to have an effect on the NDA but that it could tie Trump to the criminal case surrounding the payment.
“This does connect the president to any campaign finance violations involved in the Daniels deal,” Super said. “Cohen is already known to have used Trump Organization facilities to make the deal happen, but this connects it back to the president. It eliminates the possibility that Cohen was acting independently from the campaign as a Trump enthusiast.”
Former federal prosecutor Jeffrey Cramer said it merely “confirms the obvious.”
“Cohen was either representing Trump on the payment and Trump knew about it, or Cohen was representing Trump but kept him in the dark on the payment and paid it out of his own pocket without reimbursement,” Cramer said. “That makes no sense.”
At the very least, it would seem Trump was aware of the headache that was Daniels. And it’s not the first suggestion that he was. Last week, Trump tweeted that a man Daniels said threatened her in a parking lot in 2011 was “nonexistent.” That appeared to suggest that Trump was aware of the situation, at least as of 2011. Otherwise, how would he have known that this didn’t happen?
It all leads to the question: Was Trump broadly aware of the Daniels situation but deliberately kept in the dark about the payment to retain plausible deniability? And how firmly separated was he from it — both informationally and financially? For example, Trump still hasn’t denied that he had a fund for Cohen to draw from to reimburse himself for the payment.
Trump said in the “Fox and Friends” interview that he has been informed that Cohen’s case isn’t about him. “I’ve been told I’m not involved,” he said. But he seems to keep suggesting he was, however indirectly.