Trump must beware the Cohen trap

The image of FBI agents carting away computers and records of Michael Cohen, President TrumpDonald John TrumpGrassley: Dems 'withheld information' on new Kavanaugh allegation Health advocates decry funding transfer over migrant children Groups plan mass walkout in support of Kavanaugh accuser MORE’s personal lawyer, is just the latest cringeworthy moment from the life and times of the attorney. Few would be surprised by Cohen being criminally charged. However, Cohen’s greatest danger to Trump may be not as a defendant but as bait.

Consider the curious aspect of this referral: A year ago, Deputy Attorney General Rod RosensteinRod Jay RosensteinTrump distances himself from Rosenstein by saying Sessions hired him AP: Trump polled staff on board Air Force One over whether to fire Rosenstein House Judiciary chair threatens subpoena if DOJ doesn’t supply McCabe memos by Tuesday MORE had no problem with expanding Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE’s mandate to allow him to investigate and order a “no-knock raid” on former Trump campaign manager Paul ManafortPaul John ManafortDem warns Trump: 'Obstruction of justice' to fire Rosenstein Ex-White House official revises statement to Mueller after Flynn guilty plea: report Former White House lawyer sought to pay Manafort, Gates legal fees: report MORE. Those crimes were far removed from the original purpose of the special counsel investigation, and included business transactions linked to his work in Ukraine and conduct years before the election.

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Media is reporting that Mueller went to Rosenstein with the evidence against Cohen for fraud and other offenses in Russia and Ukraine, including campaign finance violations in the very election that is the subject of the original mandate. Yet, now, Rosenstein reportedly wanted Cohen investigated by the U.S. Attorney’s Office for the Southern District of New York. If so, why? The offenses are far closer to Trump and the campaign than those allowed against Manafort.

 

This is why the referral to the Southern District was a move that may be as cunning as it is hostile. The timing and the manner of the raid have all of the characteristics of a wolf pit, and Trump — not Cohen — could prove to be the prize. For centuries, farmers dug pits with sharp spikes at the base, and place branches over the hole. They placed a piece of meat on the branches to attract the wolf, so that it would fall into the pit.

As I have previously written, Mueller does not appear to have a compelling criminal case against Trump for collusion with the Russians. Indeed, Trump remains a “subject,” not a target, an unchanged status after more than a year of investigation and multiple cooperative witnesses. If Trump simply stays where he is, under cover, he could well run out this investigation without a charge. But that depends on him staying there.

Cohen, however, may be just the right carrion to draw this wolf into the open. Until the raid, Trump appeared, finally, to be following the advice of his lawyers in the White House and preparing for a negotiated interview with Mueller. One day after reportedly starting to prepare for that interview, the president was thrown into a rage over the raiding of his personal lawyer’s office.

Suddenly, Trump was back on camera denouncing Mueller, Rosenstein, Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsTrump distances himself from Rosenstein by saying Sessions hired him Gowdy: Declassified documents unlikely to change anyone's mind on Russia investigation Pompeo on Rosenstein bombshell: Maybe you just ought to find something else to do if you can't be on the team MORE, fired FBI director James ComeyJames Brien ComeyRosenstein report gives GOP new ammo against DOJ Gowdy: Declassified documents unlikely to change anyone's mind on Russia investigation Pompeo on Rosenstein bombshell: Maybe you just ought to find something else to do if you can't be on the team MORE and others, as well as discussing the possible firing of Mueller. Most competent lawyers agree that firing Mueller, like the disastrous firing of Comey, would present an existential threat to Trump’s presidency.

Like any good wolf trap, this set-up, first and foremost, protects the hunters. By referring the matter, Mueller and Rosenstein protected themselves from criticism of expanding the investigation. At the same time, they brought into the mix U.S. Attorney Geoffrey Berman, who Trump interviewed and nominated, as well as a neutral magistrate who signed the search warrant.

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Any evidence gathered by Berman would be shared with Mueller and could be prosecuted directly in the Southern District. Moreover, even if Trump fired Mueller, he would have to move against the Southern District to shut down this investigation. That would play directly into calls for impeachment. The point of a wolf pit is that the more the wolf thrashes around, the more he harms himself.

What must be endlessly frustrating to Trump’s legal team in Washington is that this controversy continues to be driven by the likes of Cohen. All of the lawyers around Trump have struggled mightily to control the damage caused by Cohen. Now, Cohen may force the next steps and put Trump at even greater peril. To make matters worse, Trump would fall into this particular trap with a lawyer who may have tossed away any protections for his client.

To use that privilege, you first have to confirm you are acting as a lawyer and not as a friend, fixer or business associate. Cohen seemed to relish his mixing of those roles, and that fluid, ambiguous role could now strip him and his principal client of the privilege. Cohen’s 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 in paying off adult film star Stormy Daniels just days before the election.

Cohen signed the now-infamous nondisclosure agreement with Daniels on behalf of “EC LLC,” which is basically himself. He allegedly never conferred with Trump or got his consent for paying $130,000 in hush money. Moreover, Cohen has talked about securing $20 million in penalties from Daniels for himself, not for Trump.

Even when a valid, clear attorney-client relationship exists, that privilege can be set aside in cases of crime or fraud. That is precisely what Cohen is being investigated for, in transactions extending from California to Russia to Ukraine. Already, Mueller not only has used that exception to strip away privilege from Manafort but he effectively turned Manafort’s attorney, Melissa Laurenza, into a witness against her client.

Cohen now could be looking at serious criminal exposure and, if charged with campaign-finance and fraud violations, only two men will be able to deliver him from the quagmire of his own making: Trump and Mueller. The president could ultimately pardon Cohen, while the special counsel could give him a deal. Some at the Justice Department may be counting on Trump’s aggressive tendencies to do the rest. In running to Cohen’s rescue, the president could easily find himself the prize rather than the predator in this conflict.

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