Is Michael Cohen speaking to an audience of one?

The Lead panel discusses.

Posted: Jul 3, 2018 2:03 PM
Updated: Jul 3, 2018 2:27 PM

Michael Cohen, who once famously asserted he would "take a bullet" to protect the President, has apparently reversed course -- now that the gun is locked and loaded, so to speak.

The ammunition, of course, is the looming possibility of a criminal indictment any day now by federal prosecutors in Manhattan. Cohen's recent off-camera interview with George Stephanopoulos is the strongest indication I've seen thus far in Cohen's ongoing legal saga that he will likely cooperate with federal prosecutors.

Cohen, Trump's longtime attorney and consigliere, is the subject of a federal criminal investigation led by the FBI and the US attorney for the Southern District of New York, which executed an April 9 raid for evidence on Cohen's home, office and hotel room. The criminal referral to the Southern District reportedly came from special counsel Robert Mueller, who is investigating whether the Trump campaign colluded with Russians to influence the 2016 election.

While both Mueller and the Southern District prosecutors appear leak-proof (to their credit) -- meaning the public gets information regarding their methodology or the evidence they've gathered only through court filings -- it seems fairly obvious that the inciting factor leading to the underlying Cohen investigation has to do with the alleged "hush money" payout to adult film star Stephanie Clifford (a.k.a. Stormy Daniels). She claims she had a consensual affair with Donald Trump in 2006, as detailed in her original 2011 interview with In Touch (Trump has denied this affair).

That alleged "hush money" episode, the messy details of which are currently the subject of Cohen's civil case in California, concerns the now infamously bungled nondisclosure agreement between Clifford and Essential Consultants LLC. This is the Delaware limited liability company that Cohen created and that was used in both the $130,000 payment to Clifford and also implicated in the $1.6 million payment offer to a former Playboy model who allegedly had an affair with top Republican National Committee official Elliott Broidy (he has since resigned).

Sleaze factor notwithstanding, in many cases, nondisclosure agreements are legal. The issue with this particular payment has to do with the nature and circumstances surrounding the payment. Specifically, the amount was well above the legal limit set by the Federal Election Commission for a campaign contribution, was paid just days before the election, and concerned alleged conduct that occurred years ago.

Some have rightly noted that a violation of federal election laws could result in nothing more than a fine by the Federal Election Committee. But Cohen put the "who knew what, when" issue back in the spotlight during his Stephanopoulos interview when he declined to comment -- on advice of counsel -- on whether or not Trump had directed him to pay the $130,000 to Ms. Clifford, calling into question what Trump told reporters on Air Force One in April (that Trump did not know about the $130,000 payment to Clifford made, remember, just days before the 2016 election, and that he did not know where the money came from.).

The presence of Cohen's new counsel -- who likely advised him not to comment on the issue -- is yet another indication that he is looking to cooperate with federal prosecutors in an effort to secure leniency in sentencing for any crimes with which he may be charged; Cohen is reportedly hiring Guy Petrillo, a former head of the criminal division for the United States Attorney's Office for the Southern District of New York, to represent him.

It is no secret in white collar criminal defense circles that defendants looking to "cut a deal," or get a cooperation agreement with prosecutors, often hire a former Assistant United States Attorney from the prosecuting office.

Additionally, since prosecutors have not indicted Cohen (the Southern District case pertains only to the issue of a privileged review of the documents seized in the April 9 raid on Cohen's premises), there is still time for Cohen to engage in multiple "proffer sessions"-- that is, meetings with prosecutors during which they agree not to use his statements against him in future prosecutions -- across multiple jurisdictions in the hopes of reducing the overall severity or number of charges that might potentially brought against him.

Yet some have pointed out that if Cohen were actually interested in cooperating with the feds, the proper course of conduct would have been to have his attorney contact the prosecutors on the case, rather than do an on-the-record interview with one of the most famous journalists in the world. This apparent head-scratcher has led some to wonder if Cohen's overture is therefore simply a veiled attempt to ask Trump for a pardon (which Trump seems to be fond of doing as of late).

I don't give Cohen that much credit, though. As has proven true in this entire saga, this case is being tried in the media just as much as its being tried in the courtroom, and I wouldn't be surprised if even Cohen doesn't draw a distinction at this point.

Cohen is standing on the edge of a precipice, and in my assessment he's beginning to understand the value of his decades' worth of knowledge regarding the President and the Trump Organization: that it may now hold the keys to his freedom.

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