Anchors grew visibly uncomfortable as they listened to the president undermine his own legal defense.
The interview went off the rails, however, when the Fox hosts asked Trump about the Russia investigation dogging his presidency, and whether he would agree to interview with Mueller:
“Well, if I can. The problem is that it’s such a—if you take a look, they’re so conflicted, the people that are doing the investigation. You have 13 people that are Democrats, you have Hillary Clinton people, you have people that worked on Hillary Clinton’s foundation. They’re all—I don’t mean Democrats. I mean, like, the real deal. And then you look at the phony Lisa Page and [Peter] Strzok and the memos back and forth and the F.B.I.—and by the way, you take a poll at the F.B.I. I love the F.B.I.; the F.B.I. loves me. But the top people at the F.B.I., headed by Comey, were crooked.”
“You look at the corruption at the top of the F.B.I.—it’s a disgrace,” Trump continued, practically yelling, as the Fox hosts stared ahead nervously. “And our Justice Department—which I try and stay away from, but at some point I won’t—our Justice Department should be looking at that kind of stuff, not the nonsense of collusion with Russia. There is no collusion with me, and everyone knows it.”
.. The hosts exchanged furtive glances as they simultaneously began interrupting the president, insisting that they were out of time, even as Trump continued to shout over them. “Right, all right,” Kilmeade said. “All right,” Earhardt interjected. “O.K.” “We’d talk to you all day but it looks like you have a million things to do,” Kilmeade added. Earhardt smiled: “Thank you so much for being with us.”
For weeks, the president had been distancing himself from Mr. Cohen, including by stopping paying his longtime attorney’s legal fees, making clear amid the pressure that he was on his own.
Under oath on Tuesday, before a packed courtroom, Mr. Cohen created a spectacular moment without parallel in American history when he confessed to two crimes that he said he committed at the behest of the man who would become president.
.. For the president, it opens up a perilous new legal front.
.. Mr. Trump denied he directed Mr. Cohen to buy the women’s silence. Contradicting earlier statements, the president said he became aware of the payments to the women “later on” and said Mr. Cohen was reimbursed from his personal funds, not his 2016 campaign coffers.
.. On April 5, days before the raids, Mr. Trump told reporters on Air Force One he didn’t know about the payment to Ms. Clifford, and referred questions about the matter to Mr. Cohen. “You’ll have to ask Michael Cohen,” Mr. Trump said. “Michael is my attorney.”
Mr. Cohen, who that night was staying aboard the yacht of Trump donor Franklin Haney, which was docked in Miami, grew irate on the ship soon after Mr. Trump made his remarks distancing himself from the Clifford payment, according to a person familiar with the episode. Mr. Cohen was swearing loudly as others on the boat were sipping their drinks, the person said.
.. Initially, Mr. Cohen seemed unlikely to turn on the president. Although their relationship was at times turbulent, Mr. Trump appreciated Mr. Cohen’s absolute loyalty. On the day of the raids, Mr. Trump called the move a “disgrace” and a “witch hunt.”
Soon after the April raids, Mr. Cohen’s relationship with Mr. Trump began to deteriorate.
The estrangement began over legal bills, said a person who has spoken with Mr. Cohen about the matter. The Trump family covered part of Mr. Cohen’s legal fees after the raids, but then stopped paying.
Mr. Cohen felt exposed. Public comments by Rudy Giuliani, Mr. Trump’s lawyer, put distance between the president and Mr. Cohen and further alienated the attorney, the person said.Mr. Cohen told associates and friends he felt Mr. Trump didn’t have his back and vented that the president hadn’t personally offered to pay his legal bills in the Manhattan investigation, which he said were “bankrupting” him... By then, prosecutors and the Internal Revenue Service had focused on Mr. Cohen’s personal income taxes. In conversations with a potential witness in June and July, investigators asked “very pointed” questions about various tax filings, according to a person familiar with the conversations.
“They knew what they wanted, they knew what they had, and they went after it,” the person said.
In late June, Mr. Cohen openly broke with Mr. Trump... Mr. Cohen’s father urged him not to protect the president, saying he didn’t survive the Holocaust to have his name sullied by Mr. Trump.. On June 20, Mr. Cohen stepped down from his position as the Republican National Committee’s deputy finance chairman and tweeted his first public criticism of his former boss: “As the son of a Polish holocaust survivor, the images and sounds of this family separation policy [are] heart wrenching.” The tweet no longer appears on Mr. Cohen’s Twitter account... In July, a recording became public that Mr. Cohen surreptitiously made of a conversation he had with Mr. Trump in September 2016 about buying the rights to Ms. McDougal’s story. The president has denied the affair.The president’s legal team had waived attorney-client privilege on the recording, which had been seized in the April 9 raids.
.. Given the Justice Department’s policy of not indicting sitting presidents, a guilty plea from Mr. Cohen and his public implication of Mr. Trump were among the strongest outcomes prosecutors could have hoped for.. For prosecutors, the guilty plea meant they could avoid a contentious trial and free up resources to pursue other investigations... one of Mr. Cohen’s lawyers, Lanny Davis, appeared on cable news shows to say Mr. Cohen wouldn’t accept a pardon from Mr. Trump and “is more than happy to tell the special counsel all that he knows.”
The White House counsel, Donald F. McGahn II, has cooperated extensively in the special counsel investigation, sharing detailed accounts about the episodes at the heart of the inquiry into whether President Trump obstructed justice, including some that investigators would not have learned of otherwise, according to a dozen current and former White House officials and others briefed on the matter.1
In at least three voluntary interviews with investigators that totaled 30 hours over the past nine months, Mr. McGahn described the president’s fury toward the Russia investigation and the ways in which he urged Mr. McGahn to respond to it
.. It is not clear that Mr. Trump appreciates the extent to which Mr. McGahn has cooperated with the special counsel. The president wrongly believed that Mr. McGahn would act as a personal lawyer would for clients and solely defend his interests to investigators
.. Mr. McGahn cautioned to investigators that he never saw Mr. Trump go beyond his legal authorities, though the limits of executive power are murky.
.. the two rarely speak one on one — the White House chief of staff, John F. Kelly, and other advisers are usually present for their meetings — and Mr. Trump has questioned Mr. McGahn’s loyalty.
.. Mr. McGahn that he has called the president “King Kong” behind his back, to connote his volcanic anger, people close to Mr. McGahn said.
.. Mr. Burck said that Mr. McGahn had been obliged to cooperate with the special counsel. “President Trump, through counsel, declined to assert any privilege over Mr. McGahn’s testimony
.. He wanted to take on Mr. Mueller directly, attacking his credibility and impeding investigators. But two of his newly hired lawyers, John M. Dowd and Ty Cobb, have said they took Mr. Trump at his word that he did nothing wrong and sold him on an open-book strategy.
.. As White House counsel, not a personal lawyer, he viewed his role as protector of the presidency, not of Mr. Trump. Allowing a special counsel to root around the West Wing could set a precedent harmful to future administrations.
.. Mr. Trump blamed him for a number of fraught moments in his first months in office, including the chaotic, failed early attempts at a ban on travelers from some majority-Muslim countries and, in particular, the existence of Mr. Mueller’s investigation.
.. Mr. McGahn’s decision to cooperate with the special counsel grew out of Mr. Dowd’s and Mr. Cobb’s game plan, now seen as misguided by some close to the president.
.. Last fall, Mr. Mueller’s office asked to interview Mr. McGahn. To the surprise of the White House Counsel’s Office, Mr. Trump and his lawyers signaled that they had no objection, without knowing the extent of what Mr. McGahn was going to tell investigators.
Mr. McGahn was stunned
.. Mr. Burck has explained to others that he told White House advisers that they did not appreciate the president’s legal exposure and that it was “insane” that Mr. Trump did not fight a McGahn interview in court.
.. the White House has to understand that a client like Mr. Trump probably made politically damaging statements to Mr. McGahn as he weighed whether to intervene in the Russia investigation.
.. Mr. McGahn and his lawyer grew suspicious. They began telling associates that they had concluded that the president had decided to let Mr. McGahn take the fall for decisions that could be construed as obstruction of justice, like the Comey firing, by telling the special counsel that he was only following shoddy legal advice from Mr. McGahn.
.. McGahn told people he was determined to avoid the fate of the White House counsel for President Richard M. Nixon, John W. Dean, who pleaded guilty to conspiracy to obstruct justice in the Watergate scandal.
Mr. McGahn decided to fully cooperate with Mr. Mueller. It was, he believed, the only choice he had to protect himself.
.. “This sure has echoes of Richard Nixon’s White House counsel, John Dean, who in 1973 feared that Nixon was setting him up as a fall guy for Watergate and secretly gave investigators crucial help while still in his job,” said the historian Michael Beschloss.
.. By exerting attorney-client privilege, which allows the president to legally withhold information, they would have gained the right to learn what Mr. McGahn planned to tell investigators and what he might reveal that could damage the president. But the president’s lawyers never went through that process, although they told people that they believed they still had the ability to stop Mr. Mueller from handing over to Congress the accounts of witnesses like Mr. McGahn and others.
.. Mr. Burck and Mr. McGahn met the special counsel team in November for the first time and shared all that Mr. McGahn knew.
.. Mr. McGahn gave to Mr. Mueller’s investigators, the people said,
- a sense of the president’s mind-set in the days leading to the firing of Mr. Comey;
- how the White House handled the firing of the former national security adviser, Michael T. Flynn; and
- how Mr. Trump repeatedly berated Mr. Sessions, tried to get him to assert control over the investigation and threatened to fire him.
.. it became apparent that Mr. McGahn and Mr. Burck had overestimated the amount of thought that they believed the president put into his legal strategy
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.
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 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.
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.