Good morning. The president’s lawyer just got sentenced to three years in jail, and it looks like the National Enquirer has a safe full of dirt on our commander in chief. So things are going well. Thursday morning, Trump started melting the hell down on Twitter, and while his spelling seems markedly better than usual, his statements about law ranged from the puzzling to the idiotic.
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
Let’s take a look and break this down, bit by ridiculous bit.
I never directed Michael Cohen to break the law.
Good. Okay. He should just stop tweeting right here.
He was a lawyer and he is supposed to know the law.
It’s true that Cohen was and is a lawyer (at least until he gets disbarred). But convenient as it may be for Trump to believe that it’s perfectly legal to conspire with a lawyer to commit crimes, it doesn’t work that way. In general, directing a person to commit a crime is called “solicitation.” It’s a crime all by itself, even if that person never actually commits the crime (for an easy visual on this concept, check out every sitcom scene featuring the arrest of a prostitute and her john). If the person solicited actually commits the crime, the whole thing morphs into a conspiracy. For most crimes, there is no requirement that the person giving or receiving instructions for criminal behavior actually know the law creating the criminal offense. And by the way, this all applies equally to lawyers and non-lawyers.
Criminal-level campaign finance violations (which are one of several categories of crimes for which Cohen was prosecuted) do require knowledge of wrongdoing – but much as Trump would like to pass the buck here, Cohen’s knowledge isn’t really what matters. If Trump knew his behavior was illegal, then Cohen could have been the leading expert on campaign finance and it wouldn’t matter a fig.
It is called “advice of counsel,” and a lawyer has great liability if a mistake is made. That is why they get paid.
I mean, sure. Lawyers do face “great liability” for professional malpractice if they make egregious mistakes. But as I recall, no one was talking about any mistakes that Cohen has made. Cohen broke the law and said Trump directed him to do so. Rising insurance premiums are the least of Cohen’s problems right now.
It’s not a great idea for Trump to bring up “advice of counsel” here (although I’m very proud of him for spelling both words correctly for perhaps the first time ever). Using the “my lawyer made me do it” defense is a terrible idea, because—as my colleague Colin Kalmbacher discusses here— it can indicate a waiver of attorney-client privilege. Whatever has already gone down between Cohen and Trump, I think we can all agree that Cohen probably knows where a few more bodies are buried. Trump should probably stop talking before he provides the feds with a roadmap for investigation printed on Cohen’s letterhead.
Despite that many campaign finance lawyers have strongly… stated that I did nothing wrong with respect to campaign finance laws, if they even apply, because this was not campaign finance.
First off, I’ve seen Trump’s legal experts. I’m not impressed. Rudy Giuliani still hasn’t figured out how Twitter works, and it’s getting a lot harder to take Alan Dershowitz seriously these days.
The only lawyers whose opinions matter on this front are those holding the power to prosecute Trump. When Robert Mueller and Geoffrey Berman say that Trump is clean, he can tweet his innocence all he likes. Until then, though, he should just stop.
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.. …guilty even on a civil basis.
Apparently, Trump did a little research and learned that there are both civil and criminal campaign finance violations. The distinction is certainly an important one, but what’s more important is that Cohen pleaded guilty. In Trump’s world, an admission given in court and sworn under oath might be meaningless, but in reality, such things establish fact. Whether or not Trump believes Cohen could have been convicted had his case gone to trial is irrelevant; a guilty plea establishes guilt. And unfortunately for Trump, that guilt implicates him.
Also, pro tip: when we’re talking about a civil case, we use the word “liable,” not the word, “guilty.”
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.
Right. That’s how criminal law works. Smaller fish accept reduced sentences in exchange for dishing on bigger fish. See, e.g. every episode of Law & Order. Also, one edit: let’s change “embarrass” to “implicate” just for accuracy’s sake. Thanks.
As a lawyer, Michael has great liability to me!
Trump’s incessantly awkward use of language creates some frustrating ambiguity here. POTUS may be trying to say that Cohen was or is a great liability to him — meaning that Cohen’s actions while on Trump’s staff put Trump at risk. That’s certainly true. Few people have as much dirt on Trump as do Cohen; but Trump isn’t exactly known for admitting his own weaknesses, so I’m guessing this tweet wasn’t meant as some kind of confession.
Perhaps Trump actually meant to accuse Cohen of being liable to him. Trump is no stranger to lawsuits, so perhaps he is shoring up a malpractice or other civil claim against Cohen. That’d be kind of lame, if we’re being honest. Essentially, such an exchange would boil down to:
Cohen: “I committed crimes because Donald Trump directed me to do so.”
Trump: “Yeah, well I’m going to sue Cohen for being a lousy lawyer.”
You’d really think that someone with such experience on reality television would have a better comeback. Speaking of comebacks:
You have the right to remain silent. Anything you say can and will be used against you in a court of law. These are your rights. Continue to tweet at your own risk.
— Susan (@SSevilla8) December 13, 2018
[Image via Mark Wilson/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.
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