Stormy Daniels’s Lawyer Michael Avenatti Complicates Michael Cohen Probe

A lawyer for former adult-film star Stephanie Clifford has frustrated efforts by federal prosecutors to obtain information about a hush-money deal involving President Donald Trump’s personal lawyer, according to people familiar with the matter.

.. But behind the scenes, Mr. Avenatti has slowed prosecutors’ efforts to discuss the nondisclosure agreement with Ms. Clifford’s former lawyer, these people say. Mr. Avenatti also demanded to review documents investigators subpoenaed from Ms. Clifford’s former manager, they said.

.. Mr. Avenatti hasn’t yet acted on multiple requests from federal prosecutors in Manhattan for Ms. Clifford to waive the attorney-client privilege that prevents her former lawyer from discussing their communications about the nondisclosure deal
..  Mr. Avenatti tried to block Ms. Rodriguez from providing her communications with Ms. Clifford to federal prosecutors until he had reviewed them, other people familiar with the matter said.
.. Mr. Avenatti has told federal prosecutors he is trying to get Ms. Clifford to agree to waive her attorney-client privilege, but prosecutors have come to believe he is stringing them along
.. The delays in responding to their requests to waive privilege aren’t seen as highly damaging to the probe but have frustrated investigators
.. while the situation involving Ms. Clifford is unusual, lawyers in general are reluctant to give up attorney-client protections.

What President Trump doesn’t understand about attorney-client privilege

Cohen said he acted on his own in paying Clifford. Trump agreed, saying he didn’t know about the payment. In this case, Cohen was not acting as Trump’s attorney in the transaction, and there is no attorney-client relationship since, according to the president, there are no communications in which he sought legal advice. Trump has essentially waived the attorney-client protection on this issue. Moreover, if any of the materials obtained were used in furtherance of a crime, they are subject to a crime-fraud exception to the attorney-client privilege.

His conviction that it was still in play, however, is probably a consequence of the way he and other affluent figures have long used attorney-client privilege as a preemptive shield. Whether they realize prosecutors have ways to navigate the attorney-client privilege, they know that getting around it is never easy.

.. This presumption of privilege can give cover to criminal actors. Well-heeled criminals often include attorneys in their illicit communications to shield their activity from discovery. Conversely, people who are familiar with the privilege often assume it’s stronger than it really is: Former White House aide Hope Hicks reportedly alarmed Mark Corallo, former spokesman for Trump’s legal team, when she made a potentially compromising statement without a lawyer present and thus — in Corallo’s view — unprotected by the attorney-client privilege. The mere presence of a lawyer would not, in practice, have made the conversation legally privileged. Nevertheless, Corallo’s assumption that it could have shielded the comment from discovery speaks to the way Trump and his ilk have attempted to take advantage of attorney-client privilege.

The Cohen Searches and Trump’s De Mini-Mess

The Stormy Daniels scandal could be more perilous for Trump than the Russia investigation has been.

.. Barack Obama’s 2008 presidential campaign was caught hiding the sources of 1,300 large campaign donations, aggregating to nearly $2 million. The campaign also accepted more than $1.3 million in unlawful donations from contributors who had already given the legal maximum.

.. Under federal law, such campaign-finance violations, if they aggregate to just $25,000 in a calendar year, may be treated as felonies punishable by up to five years’ imprisonment — with offenses involving smaller dollar amounts punishable by incarceration for a year or more

.. Cohen’s law practice, which is the focus of the investigation involving the payment to Daniels (whose real name is Stephanie Clifford), is in the SDNY.

.. The SDNY is no longer run by Preet Bharara, whom Trump dismissed along with other Obama appointees after taking office. The acting U.S. attorney is Geoffrey Berman, a Trump appointee named by Attorney General Jeff Sessions to serve on an interim basis while awaiting confirmation.

.. ABC News reports that Berman is recused from the Cohen investigation

..  Cohen’s obvious relevance to Mueller’s investigation — he is accused in the Steele dossier of being a liaison between the Trump campaign and Russia (an apparently uncorroborated claim that Cohen convincingly denies); and he was on the receiving end of emails from Felix Sater, a Russian immigrant and Trump business associate, who boasted that his friend Vladimir Putin would help “get Donald elected.”

.. When one reads the guidelines, one suspects that there must be more to the SDNY’s investigation of Cohen than the Stormy Daniels transaction — a suspicion echoed in the aforementioned Times report, which describes the searches as “related to several topics, including a payment to a pornographic film actress” (emphasis added).

.. If the only matter under investigation were a potential campaign-finance violation that would normally not be grist for criminal prosecution, it would be outrageous to raid a lawyer’s office — especially the president’s lawyer.

Not only must high-level Justice Department approval be obtained before seeking a search warrant for an attorney’s premises; the prosecutors and their superiors must explore whether less intrusive investigative alternatives — such as seeking the desired materials by grand-jury subpoena — would be viable.

.. The issuance of search warrants necessarily means a federal judge found probable cause that evidence of at least one crime would be uncovered in Cohen’s premises. In addition to the potential campaign-finance offense, the feds are reportedly weighing bank-fraud charges — possibly on a theory that steps taken to hide the nature and purpose of the payment to Clifford entailed misrepresentations to a financial institution, although that is just speculation at this point.

.. The clean team determines what files are relevant to the matter under investigation, with any irrelevant files returned to the attorney.

.. the attorney and any affected clients are given an opportunity to claim that the files contain privileged communications and should be returned. Where the parties cannot agree, such privilege claims are decided by a judge.

.. the clean team ensures that the investigation team is not tainted by exposure to privileged communications.

.. As I explained last November, when we learned that Mueller had forced an attorney who had represented Manafort to testify against him, there is a so-called crime-fraud exception to the attorney–client privilege.

.. If a client’s communications with a lawyer are for the purpose of carrying out a fraudulent scheme, they lose any claim to confidentiality. Theoretically, then, Trump and Cohen have a legal as well as a factual problem. Legally, if they conspired to execute a payment in violation of campaign laws in order to silence Clifford, their communications in this regard would not be privileged.

Factually (if implausibly), both Cohen and Trump claim that the former did not tell the latter about the payment to Clifford; and that Cohen made the payment in his personal capacity, not as Trump’s lawyer. How, then, can they now claim attorney–client privilege in connection with the transaction?

.. the porn-star payment undeniably happened. I argued then, and I’m even more convinced now, that “the best argument in Trump’s favor is one that claims mitigation, not innocence.”

.. As for Trump’s fitness for the presidency, the scandal tells us exactly nothing that we didn’t already know about the flawed man that Americans chose to elect.

The Law Is Coming, Mr. Trump

To sum up, a Republican-appointed former F.B.I. director consulted with a Republican-appointed deputy attorney general, who then authorized a referral to an F.B.I. field office not known for its anti-Trump bias. Deep state, indeed.

.. “Attorney-client privilege is dead!” the president tweeted early Tuesday morning, during what was presumably his executive time. He was wrong. The privilege is one of the most sacrosanct in the American legal system, but it does not protect communications in furtherance of a crime. Anyway, one might ask, if this is all a big witch hunt and Mr. Trump has nothing illegal or untoward to hide, why does he care about the privilege in the first place?

The answer, of course, is that he has a lot to hide.

.. And what of Mr. Cohen? He’s already been cut loose by his law firm, and when the charges start rolling in, he’ll likely get the same treatment from Mr. Trump.

.. Mr. Trump instead made it about him, with his narcissistic and self-pitying claim that the investigation represented an attack on the country “in a true sense.”

No, Mr. Trump — a true attack on America is what happened on, say, Sept. 11, 2001. Remember that one? Thousands of people lost their lives. Your response was to point out that the fall of the twin towers meant your building was now the tallest in downtown Manhattan. Of course, that also wasn’t true.