Michael Cohen and Lanny Davis latest to 'sell' scandal testimony

Michael Cohen and Lanny Davis latest to 'sell' scandal testimony
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Lawyer Lanny Davis this week became a virtual infomercial for a GoFundMe site. In continuous appearances on every network, Davis shilled for donors for his client, former Donald Trump attorney Michael Cohen.

Such fundraising has become a regular feature of Washington scandals. Almost $2 million has been raised by anti-Trump figures such as former FBI acting director Andrew McCabeAndrew George McCabeMcCabe says it's 'absolutely' time to launch impeachment inquiry into Trump Feds gone wild: DOJ's stunning inability to prosecute its own bad actors Comey: Trump peddling 'dumb lies' MORE, fired FBI agent Peter Strzok and adult film star Stormy Daniels. Trump protégés like Roger StoneRoger Jason StoneJudge orders Roger Stone to file rebuttal to allegation he violated gag order Federal prosecutors allege Roger Stone violated gag order with Instagram posts House panel subpoenas Flynn, Gates MORE similarly are raising money from the other side.

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Cohen’s pitch, however, highlights a troubling aspect of these campaigns. They amount to a raw form of buying witnesses. For many, GoFundMe has become a bazaar where one can put money down on the testimony most likely to hurt or help Trump. People poured hundreds of thousands of dollars into the accounts of McCabe and Strzok within the first 48 hours.

It is a curious extension of the entertainment industry where, instead of selecting the next star on “America’s Got Talent,” you can support the next star witness. Of course, one can be prosecuted for giving someone money in exchange for testimony. Likewise, it is unethical to solicit clients in most states but you can solicit funds to pay for a case. Other rules limit the compensation that could be viewed as “contingent upon the witness’s testimony.” Still other rules caution lawyers about accepting money for fees from third parties trying to influence or interfere with a client. Yet, individuals essentially can put their testimony on the block for sale, even competing with other witnesses in moving to the most hostile anti-Trump posture.

The problem is that any effort to limit such sites could curtail public interest in funding litigation. Moreover, the law bars have spent two decades reducing regulation of legal advertising and are not eager to go back to that free speech morass. In the absence of regulation, it is all about positioning oneself in the market.

In Cohen’s case, this week saw his 180-degree turn from sycophant to saboteur by implicating President TrumpDonald John TrumpFormer Joint Chiefs chairman: 'The last thing in the world we need right now is a war with Iran' Pence: 'We're not convinced' downing of drone was 'authorized at the highest levels' Trump: Bolton would take on the whole world at one time MORE directly in his “allocution” as a newly confessed felon. Davis made clear his client offered consumers the biggest bang for the anti-Trump buck. He said Cohen might be able to give special counsel Robert MuellerRobert (Bob) Swan MuellerKamala Harris says her Justice Dept would have 'no choice' but to prosecute Trump for obstruction Dem committees win new powers to investigate Trump Schiff says Intel panel will hold 'series' of hearings on Mueller report MORE evidence of collusion and obstruction while denouncing Trump as a “corrupt” president. He even said Cohen would not accept a pardon from Trump.

Putting aside that you do not “accept” pardons any more than you accept convictions, Cohen was positioning himself in the increasingly crowded witness market. Davis, notably, rolled out the GoFundMe effort by mistakenly directing people to a site that directs readers to the Trump campaign page. This is not to belittle what is no easy task for Davis or Cohen to raise sympathy and support for an unsympathetic figure. After all, Cohen showed no empathy or decency toward critics of Trump.

He reportedly once threatened Harvard students with expulsion for lampooning Trump. He is quoted as saying, “I’m gonna come up to Harvard. You’re all gonna get expelled. If this photo gets out, you’ll be outta that school faster than you know it. I can be up there tomorrow.” Now, he has Davis asking for donations to help end his and his family’s “suffering.”

Cohen showed equal relish in threatening journalists. In 2015, then-Daily Beast reporter Tim Mak received a call from Cohen about a story he was writing on Ivana Trump’s claim (later recanted) that Trump raped her. In a recording made by Mak, Cohen started in his signature style: showing utter lack of knowledge of the law. He declared “that by the very definition, you can’t rape your spouse” — which is incorrect … in all 50 states.

He continued, “I will make sure that you and I meet one day over in the courthouse and I will take you for every penny you still don’t have, and I will come after your Daily Beast and everybody else that you possibly know.” He then went full mob heavy, warning Mak to “tread very f-----g lightly because what I’m going to do to you is going to be f------g disgusting. ... Do you understand me?”

Cohen defrauded the public of millions in unpaid business taxes, spent lavishly on multimillion-dollar condos in Trump Tower and other expenses. The fraud claims against him detail how he received envelopes of cash from his associate, Evgeny “Gene” Freidman, the “Taxi King” of New York who recently pleaded guilty to charges.

Those cash envelopes are an ironic twist, since Davis earlier attacked Trump for suggesting cash payments to former Playboy bunny Karen McDougal. Davis said “only drug dealers and mobsters talk about cash.” Well, drug dealers, mobsters — and, apparently, Michael Cohen.

This may be why Cohen went out of his way in court to implicate Trump in campaign-finance violations. It did not make a lot of sense at the time, since the indictment did not refer directly or indirectly to Trump. However, it makes a great deal of sense if Cohen was not appealing to the court or the special counsel but to the marketplace for witnesses.

Of course, selling — sorry, “funding” — a witness can put a lawyer in a rather curious representational posture. Davis painted Trump as a criminal by emphasizing the criminality of his lawyer, who happens to be Davis’ client. This “only a dirtbag would hire my dirtbag of a client” argument is perplexing. It is rare to see a lawyer bludgeoning a politician with the body of his own client while denouncing any effort to spare his client from prison by way of a pardon.

That novel defense may reflect the hard-sell to get people who hated Cohen for months to now donate for his defense. Nevertheless, his pitch has resonated with people who only care that he is now a threat to Trump. He raised almost $150,000 on the site in one day.

The danger of this “market” is obvious: Faced with massive legal fees and costs, a person may be inclined to shape their accounts to better fit a popular niche. Cohen’s transition came after months of receiving little support in his former profile. When he became the “UnTrump,” he sold like hotcakes.

“Prosperity gospel” televangelist Joel Osteen once said his own success was made by “marketing hope.” The same is now true with witnesses, by leveraging not just hope but hate. For those tired of stewing at home with anger about Trump, the pitch for donations can be irresistible. You can pay a few bucks late at night to adopt an abandoned dog — or pay a few more to weaponize a witness.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.