In his latest installment of “How Can I Screw Up My Own Defense Today,” Donald Trump on Thursday invoked a legal strategy that will almost assuredly come back to bite him in the ass very shortly. Whether he intended to or not, his tweets about Michael Cohen Thursday morning may have opened up all of the communications between Trump and his former personal lawyer, even those that were once designated as “privileged” by the Special Master who was appointed to oversee the evidence gathered in the FBI raid on Cohen’s home and offices.
Back in April, US District Court Judge Kimba Wood appointed Barbara Jones to oversee the evidence in a hotly-contested decision to allow much of the documents, recordings, texts, and other data seized in the early-morning FBI raid. It seems like a lifetime ago, but at the time, America was yet to hear the recorded audio of Trump and Cohen discussing the illegal payments to Stormy Daniels and Karen McDougal, the two women with whom Trump had affairs shortly after the birth of his youngest son.
Thursday, Trump took to Twitter to decry the testimony that Cohen has been offering in recent weeks — namely that he made the payments at the direct request of his former employer, Mr. Trump:
I never directed Michael Cohen to break the law. He was a lawyer and he is supposed to know the law. It is called “advice of counsel,” and a lawyer has great liability if a mistake is made. That is why they get paid. Despite that many campaign finance lawyers have strongly……
— Donald J. Trump (@realDonaldTrump) December 13, 2018
….stated that I did nothing wrong with respect to campaign finance laws, if they even apply, because this was not campaign finance. Cohen was guilty on many charges unrelated to me, but he plead to two campaign charges which were not criminal and of which he probably was not…
— Donald J. Trump (@realDonaldTrump) December 13, 2018
….guilty even on a civil basis. Those charges were just agreed to by him in order to embarrass the president and get a much reduced prison sentence, which he did-including the fact that his family was temporarily let off the hook. As a lawyer, Michael has great liability to me!
— Donald J. Trump (@realDonaldTrump) December 13, 2018
By publicly stating that he was acting on “advice of counsel,” Trump may have inadvertently opened himself up to further scrutiny of the “privileged” communications that Jones set aside. ACLU attorney Joshua Block seemed to agree in a tweet shortly after Trump’s outburst:
Asserting an “advice of counsel” defense generally constitutes a waiver of attorney client privilege. Maybe the materials withheld by the special master Barbara Jones will eventually be turned over to SDNY after all. https://t.co/lKUTcIiqDD
— Joshua Block (@JoshABlock) December 13, 2018
Most legal experts agree as well: The waiver could extend through the entire time the client and attorney worked together, up to and including during a trial.
Indeed, Jones’ final assessment of the Cohen raid items was that “7,146 are Privileged, 285 are Highly Personal, and 8 are Partially Privileged.” That means I can think of 7,439 reasons Trump ought to put down his phone today.
Featured image via screen capture
