Trump Denies Telling Cohen to "Break the Law"

Donald Trump today denied telling Michael Cohen to break the law.

“I never directed Michael Cohen to break the law,” he said. “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.”

"Advice of counsel" as a defense is rarely successful. By asserting it, a defendant may end up waiving his attorney-client privilege. The D.C. District Court held in the Manafort case:

"Communications otherwise protected by the attorney-client privilege are not protected if the communications are made in furtherance of a crime, fraud, or other misconduct." [More...]

In general, the elements of the advice of counsel defense requires the client to establish that he or she:

(1) honestly and in good faith sought the advice of counsel,
(2) fully and honestly laid all the facts before his counsel, and
(3) honestly and in good faith followed his counsel's advice, believing it to be correct and intending that his acts be lawful.

Every time Trump talks, there's a shifting of the sands. First it was that the payments were designed to keep Melania from knowing about the allegations. Today's statement shows he discussed the payments with Cohen and relied on Cohen's advice (and maybe paid him for that advice). According to Cohen, he and Trump understood that the payments were "hush money" and designed to influence the election, and there was a later attempt to cover it up.

Does Trump believe this boils down to a he-said/ he-said between him and Cohen? Surely he realizes there the Government has more evidence.

< Michael Cohen Sentenced to Three Years | Maria Butina Pleads Guilty, Agrees to Cooperate >
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    Advice of counsel would be a good defense (5.00 / 1) (#4)
    by Peter G on Thu Dec 13, 2018 at 09:52:21 PM EST
    to a charge of violating federal election law, which does have as an element of guilt the requirement that the defendant acting in a way that s/he knew violated the law. But only if, as you say, J, the client sought the advice of counsel about the legality of their proposed course of action (presumably, because the client had some question or doubt about legality). I don't think that's actually what Tr*mp was suggesting by this comment (which I don't believe any more than I believe anything else he says). It seems to me that all he was saying was "I told my lawyer to take care of this problem for me any way he could, and I assumed he would do so in a lawful manner. Therefore, I am not criminally responsible for the fact that he undertook to carry out my objectives in an illegal manner." This story (if a jury were to believe it) would actually be a better defense than what lawyers call "advice of counsel" (as correctly explained and defined in the post by Jeralyn).

    Sen. Lindsey Graham (R-SC) apparently ... (5.00 / 1) (#10)
    by Donald from Hawaii on Sun Dec 16, 2018 at 03:11:36 AM EST
    ... doesn't have a problem with Trump "lying about sex." And to be perfectly honest, neither do I. That's what guys tend to do when they're caught dipping their quills in the wrong inkwells. As was the case with Bill Clinton 20 years ago, I think that Donald Trump's sex life is frankly none of our business, and I dearly wish it could've stayed that way.

    That's also clearly not the issue under discussion anymore. Rather, it's Trump's lies about hush money payments made on his behalf by third parties. Clinton never did that. And let's make no mistake here, given this week's revelations. Trump has been directly implicated in the commission of two separate felonies. He is effectively an unindicted co-conspirator at this point, and is likely facing potential legal jeopardy as a result.

    Speaking as someone who's worked in politics for over 30 years now, there is nothing opaque about basic campaign finance law. Further, candidates and campaign committees are hardly left to their own devices in interpreting the law. Federal regulations clearly define the term "personal use," and personal use can include legitimate legal expenses incurred by said candidate or campaign committee.

    But there is no category of expenditure under that federal definition of personal use for "hush money" (or for that matter, "blackmail"). I very seriously doubt that the payment of a specific remuneration to an adult film actress by one's personal attorney in order to secure her silence about a past encounter with the candidate qualifies as a legitimate legal expense for his campaign. Rather, how that expense is ultimately defined will really depend upon the facts and circumstances in this case.

    And from my perspective, those facts appear to be quite damning.

    Also, from your link ... (5.00 / 3) (#11)
    by Erehwon on Sun Dec 16, 2018 at 09:48:44 AM EST
    Graham once said: "Impeachment is not about punishment. Impeachment is about cleansing the office. Impeachment is about restoring honor and integrity to the office."

    The hypocrite should be reminded of that every time he gets in front of a mike, and everywhere else.


    Saw a prosecutor say (none / 0) (#1)
    by CaptHowdy on Thu Dec 13, 2018 at 07:57:20 PM EST
    The fact that the judge in the Cohen case basically accepted as fact the part of the SDNY filing that said the campaign finance violations were done at the direction of Trump is potentially a big deal legally speaking as far as something like an impeachment attempt.

    Saw that too (none / 0) (#2)
    by Ga6thDem on Thu Dec 13, 2018 at 07:59:25 PM EST
    and the reason is that the judge has seen all the evidence we have not.

    Where did you read that the judge (none / 0) (#3)
    by Peter G on Thu Dec 13, 2018 at 09:44:13 PM EST
    has seen the evidence against Cohen? That would be highly unusual; not a standard part of the process of accepting a guilty plea.

    Agree, I assumed s/he meant (none / 0) (#6)
    by Jeralyn on Fri Dec 14, 2018 at 07:00:49 PM EST
    the Judge has seen the unredacted pleadings (full version without blackouts)

    Sorry. (none / 0) (#8)
    by Ga6thDem on Sat Dec 15, 2018 at 05:38:07 PM EST
    You're right. That is what I meant. The judge has seen the entire document.

    Sorry. (none / 0) (#9)
    by Ga6thDem on Sat Dec 15, 2018 at 05:38:07 PM EST
    You're right. That is what I meant. The judge has seen the entire document.

    Interesting (none / 0) (#5)
    by CaptHowdy on Fri Dec 14, 2018 at 06:04:16 PM EST
    On Friday the entire fifth floor of a Washington D.C. court room was shut down, so that investigators in Special Counsel Robert Mueller's probe could obtain a subpoena in secrecy.

    Journalists were shooed away, Politico reported, and hungrily waited for scoops--apparently none came.

    As Mueller's team waged battle behind closed doors, there was speculation that Trump himself was the target of the subpoena.

    "At every level, this matter has commanded the immediate and close attention of the judges involved -- suggesting that no ordinary witness and no ordinary issue is involved," former federal

    From a more informed source, it seems (none / 0) (#7)
    by Peter G on Fri Dec 14, 2018 at 10:15:07 PM EST
    that the fifth floor of the U.S. courthouse in D.C. was closed to the public during the argument of an appeal (apparently the second or third appeal since August in the same matter) concerning enforcement of a grand jury subpoena. No surprise that no info is available about this litigation.

    The decision came down this morning (none / 0) (#12)
    by Peter G on Wed Dec 19, 2018 at 05:40:18 PM EST
    just 4 days later, in favor of Mueller's subpoena and against what appears to be a foreign-connected corporation whose records are being sought.

    SITE VIOLATOR (none / 0) (#14)
    by Zorba on Fri Dec 21, 2018 at 09:05:31 AM EST
    Spammer on several threads.