Privileged Information

Think of it as a movie. The setting – a federal courthouse in lower Manhattan – a cold and dark and rainy April morning, a Monday morning – the streets filled with reporters. The young and smart and handsome and articulate and bold attorney for the porn star – Stormy Daniels of course (this is a movie) – steps from his car. He takes a curiously long walk, in the rain, to the courthouse door, trailing eager reporters hanging on his every word. He gives them their story. The president’s personal attorney, who, a few days before the election, forced his client to sign a non-disclosure agreement about her kind of sad and kind of kinky affair with the future president, is going down. Maybe the president is going down. This is the start. He smiles his ironic smile. The feds got their warrant – they grabbed everything from the office and home of the president’s personal attorney before he could hide or destroy anything, anything that would be proof any number of crimes – extortion, criminal intimidation, money laundering, wire fraud, and of course perjury and violations of federal election law – massive illegal in-kind campaign contributions of all sorts. Moments later, the porn star herself slips in the courthouse door – a fleeting glance. She’s dressed to the nines, in spike heels too, there to watch the president’s personal attorney go down. Everyone had watched her interview with Anderson Cooper. She’s smart. She’s funny. She’s strong. She doesn’t take crap from anyone. She slips into the courtroom. This is going to be epic. Fade to black.

Fade in. The president’s personal attorney, Michael Cohen, with a phalanx of his own attorneys, and one representing the president, steps out of his car and walks the short walk to the courthouse door, in the cold rain, head down, saying nothing. Let the reporters shout their questions. He’s not saying a word. He’s there to argue for a temporary restraining order. Screw the warrant. The feds should not be allowed to look at or listen to anything they grabbed until he and his team have looked at everything first and decided what is and what is not protected by attorney-client privilege – their call and not the fed’s on each and every item. The attorney representing the president is there to argue that the president, Donald Trump, should get to look at each and every item too, and decide what is and what is not protected by executive privilege – his call and his call alone. No one trying to prosecute anyone for anything will see anything at all, unless Michael Cohen and then Donald Trump say they can. This is going to be epic. Fade to black. 

Fade in – the crowded courtroom scene – the Cohen-Trump team makes their argument for that temporary restraining order and for their right to say who gets to see anything at all. The judge raises an eyebrow. The other side argues that they already have an independent “taint team” in place – as is usual in these matters – to keep what is protected by attorney-client privilege thoroughly protected – and then they drop the bomb. They argue that attorney-client privilege is moot here. Michael Cohen may have a law degree, but he wasn’t acting as an attorney in any matters they are investigating. They are investigating fraud and crime, and anyway, Michael Cohen never was a real attorney – and then, in this movie, things get hot. He is a real attorney, with real clients! Yeah, so name them! Okay, there’s Donald Trump, and the Republican big-wig who got that Playboy model pregnant and then paid for her abortion and then gave her more than a million dollars to help out, and to keep her quiet – arranged by his very real attorney, Michael Cohen – and a third client who cannot be named – so that’s three – so there! Oh yeah, name that third client! No way – that’s privileged too! No it isn’t! Yes it is! No it isn’t! Yes it is!

Every movie needs a bit of high drama, and a calm and cool judge. In this movie the judge says that there’s no way the simple name of a client is protected by attorney-client privilege. Name the damned client. Dead silence – pause a beat. The air tingles. The name is spoken. Sean Hannity.

There are gasps, and a few suppressed giggles. This is the Fox News “host” who has railed against the investigation of Cohen and the investigation of Trump, night after night, on and on. The FBI should be investigating Hillary Clinton, damn it! She’s the real threat to everything America is about, damn it! She’s the one who should be stopped! This is the guy who dines with Trump at the White House once or twice a week – and this is the third client. Everything seems to fit together. This was epic. Fade to black.

That’s some movie, but that really happened, except the details a bit less dramatic:

A federal judge in Manhattan indicated on Monday that she was not prepared to grant President Trump exclusive first access to documents seized in FBI raids on the office of his personal lawyer, and said that she was considering appointing an independent lawyer to assist in reviewing the seized materials.

Feeling her way toward a resolution of the high-stakes clash involving Mr. Trump and the federal prosecutors investigating the lawyer, Michael D. Cohen, the judge, Kimba M. Wood, did not grant Mr. Trump’s request to review the trove of materials ahead of prosecutors. But she also decided that prosecutors would not immediately have access to the materials and that Mr. Trump would ultimately receive copies of the documents that pertain to him.

Judge Wood tried to split the difference, with this twist:

While Judge Wood did not formally rule on which side should get the initial look and said that discussions would continue, she added that she trusted the prosecutors.

“I have faith in the Southern District U.S. attorney’s office that their integrity is unimpeachable,” Judge Wood said.

So nothing was settled:

The government had asked that it be able to use a special group of prosecutors not involved in the investigation – known as a “taint team” – to review the seized materials and determine whether any seemed to violate the attorney-client privilege.

During the hearing, Judge Wood, after saying that she considered a taint team “a viable option,” also explained why she was considering appointing an independent lawyer, known as a special master, to assist in the review.

“In terms of perception of fairness,” she said, “not fairness itself, but perception of fairness, a special master might have a role here, maybe not the complete role, but some role.”

“My interest is in getting this moving efficiently and speedily,” the judge added.

No one was happy, but there was a bit of drama, a coda of sorts, involving Stephanie Clifford, who plays Stormy Daniels in this movie:

Once the hearing ended, a chaotic scene unfolded on the street outside the courthouse. Mobbed by reporters, Ms. Clifford attacked Mr. Cohen, saying that for years “he has acted like he is above the law.”

“My attorney and I,” she added, “are committed to making sure that everyone finds out the truth.”

After that, she hopped into a black sport utility vehicle and was quickly driven away.

That’s a real fade to black, and Sean Hannity may now be fading to black, as Michael Calderone reports here:

Sean Hannity has wavered over the years on whether he is a journalist or conservative activist, but ethics specialists say that whichever hat the Fox News host was wearing last week when he condemned the FBI raid on attorney Michael Cohen’s office, he should have disclosed that he’s a client of Cohen’s.

“It doesn’t matter if you’re a newspaper reporter or an opinion journalist,” said Indira Lakshmanan, the journalism ethics chair at the Poynter Institute. “If you want to maintain credibility with an audience, and be honest with them, you have to disclose all facts.”

Just hours after the raid on the office of Cohen, President Donald Trump’s personal lawyer, Hannity inveighed that special counsel Robert Mueller had “declared war against the president of the United States.” But Hannity didn’t disclose that he, too, had received legal advice from Cohen. Hannity’s relationship with the embattled attorney was revealed during Monday’s hearing over materials gathered during the raid – and only after a judge pressed Cohen’s attorney on the identity of a previously unnamed third client.

The omission raised questions about whether Hannity had violated journalistic ethics – or whether he was a journalist at all.

Even he is a bit confused about that:

Hannity has shifted in recent years on that point. “I never claimed to be a journalist,” Hannity told The New York Times in 2016 when asked about his informal advising of then-candidate Trump. The next year, Hannity referred to himself in a Times magazine profile as an “opinion journalist” or “advocacy journalist.” He said last month that his show “breaks news daily” in response to colleague Shep Smith characterizing Fox News’ prime-time lineup as entertainment.

He doesn’t seem to know what he is, but there may be rules here:

Kathleen Bartzen Culver, director of the Center for Journalism Ethics at the University of Wisconsin, said you don’t “move out of the realm of ethics when we move into the realm of opinion.” She said commentators should still be expected to maintain independence from subjects they are covering and disclose relevant ties.

“This is not a small matter,” she said. “We’re talking about one of the most important new stories of this time and he did not disclose his connection to it while commenting on it. His audience deserves to know when he has connections that may be affecting that commentary.”

Bartzen Culver added: “An organization needs to have standards for the people who do its reporting or commenting.”

That may be the problem here:

Hannity, the top-rated Fox News host and an especially influential voice in the Trump era, appears to have few constraints at the network. He immediately began discussing the Cohen situation on his afternoon radio show and tweeted responses to the controversy. A Fox News spokesperson did not directly respond to a question about Hannity not disclosing his relationship to Cohen, but provided a statement from the host.

“Michael Cohen has never represented me in any matter. I never retained him, received an invoice, or paid legal fees,” Hannity said. “I have occasionally had brief discussions with him about legal questions about which I wanted his input and perspective. I assumed those conversations were confidential, but to be absolutely clear they never involved any matter between me and a third party.”

On Twitter, Hannity disputed reporting by Vanity Fair’s Gabriel Sherman that he brought in Cohen last year when facing an advertiser boycott spurred by progressive groups over his fueling of the Seth Rich conspiracy theory. “What part of Michael and I never discussed anything that involved any third party is so hard to understand?” Hannity tweeted.

Still, that doesn’t help much:

On Fox News’ “The Five,” Juan Williams said there was no evidence Cohen was involved in any third-party disputes on Hannity’s behalf, as was the case with Trump and Republican National Committee Deputy Finance Chair Elliott Broidy. Cohen arranged to pay $130,000 to adult film star Stormy Daniels for her silence over an alleged affair with Trump and reportedly negotiated a $1.6 million payment to a former Playboy model who claimed Broidy impregnated her.

But Williams questioned why Hannity “didn’t disclose this earlier.”

“Why when Sean was on the air, strongly an advocate for President Trump, not saying, ‘Hey, I’ve got a relationship with the lawyer?'” Williams asked. “I think that’s a question.”

There are lots of questions here, and lots of drama, which Chris Cillizza puts this way:

If I wrote a screenplay in which a lawyer-fixer had only three clients – the President of the United States, a major GOP donor trying to cover up allegations of impregnating a Playmate and Sean Hannity – roughly ZERO major or minor studios would buy that script, considering how improbable it all is. And rightly so! Yet here we are.

That is where we are, but the fate of Sean Hannity, or even Michael Cohen, is a minor matter. Noah Feldman argues that the real improbable drama is the fate of Donald Trump:

The presidency of Donald Trump has hit a major inflection point with the investigation of his personal lawyer Michael Cohen by federal prosecutors in the Southern District of New York.

Until now, Trump personally was in jeopardy only if special counsel Robert Mueller’s team in Washington finds evidence that he knew about collusion between his campaign and Russia in the 2016 election. Even if that happens, there might not be enough to justify impeachment or a subsequent criminal charge of Trump. The president also has the power to fire Mueller to try to shut down the investigation, especially if he thinks Mueller is going beyond the terms of his appointment to investigate Russia.

Now, however, the Southern District can investigate potential Trump crimes in any area connected to Cohen, a fixer who is known to have arranged payoffs to an adult film star who says she had an affair with Trump. These prosecutors can go back as far as they want before the election, not to mention during and after it.

And there’s essentially nothing Trump can do about it. He can’t fire the career civil servant prosecutors who are now on the job. And practically, he can’t order the Southern District to stop investigating him, because such an order would likely be construed by the prosecutors there as a criminal obstruction of justice.

This is a trap:

The Southern District team can’t bring Trump to trial while he is president. But if it finds evidence of felonies involving Trump, the team could name him as an unindicted co-conspirator in charges against Cohen. That would tell the world that the president is a crook. It would put substantial pressure on Congress to impeach Trump. And, after Trump’s presidency ends, whether at the end of his term or before, a criminal prosecution could await. The prospect of a trial would loom over whatever time in the presidency he has left.

This is a trap because of one simple letter:

Recall that Mueller’s investigation is limited by Deputy Attorney General Rod Rosenstein’s letter of appointment. It authorizes Mueller to investigate Russian involvement in the 2016 election and potential crimes arising from the investigation. It isn’t carte blanche for Mueller to go after any other area of Trump’s career or life.

That matters – not only because Mueller is likely to take the terms of his appointment seriously. The letter also points to the one way Trump could credibly try to fire Mueller without revoking the Department of Justice regulations that the letter says apply to his appointment. The regulations say Mueller can be fired for good cause. Exceeding the terms of his investigative mandate could plausibly be described as good cause for removing him.

That’s why it was a master stroke for Rosenstein – presumably with Mueller’s agreement and probably prompting – to assign the Cohen investigation to the regular career prosecutors in New York. The letter doesn’t apply to them.

And that makes all the difference:

Their job is to investigate any crime of any kind that occurred within their jurisdiction, which the office traditionally interprets extraordinarily broadly to include, in essence, the whole world. That means the Cohen investigation can’t be blocked by firing Mueller. It now very literally has a life of its own. And this investigation can go after any aspect of Trump’s life that might be relevant to potential crimes by Cohen. That includes crimes that Cohen may have committed on behalf of Trump.

In fact, Trump should be worried:

Imagine, for example, that Cohen structured financial transactions to hide payoffs – keeping withdrawals just small enough to fly under a bank’s radar. That would be a felony. If Cohen did so with Trump’s knowledge and on behalf of Trump, then that could easily be charged as a federal conspiracy that would make Trump criminally liable for Cohen’s conduct. That’s how easy it would be for the Southern District prosecutors to connect Trump to federal crimes.

If Trump is implicated in Cohen’s actions, the Southern District probably wouldn’t charge the president while he’s in office. Current Justice Department guidelines say that the president shouldn’t be criminally charged while in office. (Whether that’s a constitutional requirement is under dispute, and the team that investigated Bill Clinton argued that a sitting president could be criminally charged.)

But the Southern District prosecutors wouldn’t have to charge Trump. They could simply name him as an unindicted co-conspirator while charging Cohen, as a grand jury named Richard Nixon in the cover-up of the Watergate burglary.

And that might be as deadly to Trump as it was to Nixon:

Naming the president as subject to potential felony prosecution would be a game-changer in Congress. It’s one thing for congressional Republicans to dispute potential Mueller findings that might connect Trump to Russian collusion – on the assumption that such evidence even exists, which it might well not. It would be another thing altogether for Republicans to ignore independent career prosecutors’ naming of Trump as an unindicted felon. They would come under huge pressure to impeach, and pay a huge political price if they did not.

Meanwhile, Trump would not be able to do anything about it. A potential felony charge would hang over his presidency. On leaving office, he could face charges and even prison. That would create a huge incentive for Trump to resign and wait for Mike Pence to pardon him.

Haven’t we seen this movie before? This one, however, is a bit different:

If Trump knows he hasn’t knowingly colluded with Russia, he knows he isn’t all that vulnerable to Mueller’s investigation but when the person who makes your problems go away is under the microscope, that’s bad news – historically bad.

That’s also great drama, and all of this would make a great movie. Call it “Privileged Information” – because the titles Indecent Proposal and Fatal Attraction have already been taken – which is a shame. Fade in, a cold and dark and rainy April morning, a Monday morning, the city streets filled with reporters…

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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1 Response to Privileged Information

  1. Gerald says:

    The name of the movie “White Man’s Privilege; The Rise and Fall of Donald J Trump”

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