Michael Cohen’s decision to allow Tuesday’s release of a secretly recorded conversation he had with President Donald Trump may signal that Cohen is moving toward making a deal with prosecutors, legal experts say.
The tape features Cohen, once seen as Trump’s most loyal fixer, discussing with him a payment to former Playboy model Karen McDougal. The conversation occurred just weeks before the 2016 presidential election; since then, McDougal has publicly alleged that she and Trump previously had a lengthy affair. Trump has denied her claim.
For months, Cohen has been under a federal criminal investigation for possible bank and wire fraud, as well as campaign finance violations. The tape released by his legal team was one of several that the FBI seized from Cohen’s home and office in April.
The tape’s release ― with more possible coming ― could help Cohen “improve his public standing and begin to look candid, which might help him if he goes to trial” or “attract the interest of a prosecutor... who wants to help him with a plea bargain in exchange for what he knows,” Duke law professor Donald Beskind said.
Jens David Ohlin, vice dean and law professor at Cornell, told HuffPost the tape makes it clear that Cohen knows a lot of Trump’s secrets and could prove valuable to federal prosecutors.
“From [Cohen attorney] Lanny Davis’ perspective, he wants Cohen’s situation wrapped up completely as quickly as possible,” Ohlin said. The best way to do that is “to work out a deal with prosecutors to convince prosecutors that Cohen is not very culpable in the grand scheme in things... and he’s got a lot of testimony.”
Cohen, who once said he would take a bullet for the president, indicated earlier this month that he is now looking out for himself. In an interview with ABC’s George Stephanopoulos that aired July 2, Cohen said he is putting “family and country first.”
Davis told ABC’s “Good Morning America” on Wednesday that his client is no longer seeking a pardon from Trump as protection against any possible criminal convictions.
“I think [Cohen] is going to get a deal [with federal prosecutors],” Ohlin said. “I don’t see any way that this is going to play out differently.”
Ohlin said Cohen’s shift in legal strategy is probably due to Trump not wanting to grant pardons that could be seen as obstructing justice amid the special counsel investigation into Russian interference in the ’16 campaign.
In reaction to the tapes going public, Trump questioned what kind of lawyer would tape a client. “So sad!” the president tweeted.
It is highly unusual for a lawyer to secretly record a client, four lawyers told HuffPost. However, recording is legal in many states, including New York, as long as one party involved in the conversation gives consent.
“As a lawyer, I certainly wouldn’t do that,” said Binny Miller, director of American University’s Criminal Justice Clinic.
CBS and CNN reported that Trump’s legal team waived the president’s attorney-client privilege on Cohen’s recording.
Pace University law professor John Humbach said that while a lawyer might tape a conversation for note-taking purposes, it’s unlikely the client wouldn’t know about the recording.
“A lawyer has first and foremost a fiduciary duty to put the client’s interests ahead of the lawyer’s interests,” Humbach said. “It’s kind of inconceivable to [record a conversation] without the client’s knowledge. If the lawyer is recording a conversation to protect the lawyer, that’s clearly a case of not putting the client’s interests first.”