Legal headaches

Trump's comments cause him legal headaches — again

'For his lawyers, it must be like watching your toddler play in traffic,' one former federal prosecutor said.

By JOSH GERSTEIN

President Donald Trump's penchant for freewheeling chatter on issues being litigated in court landed him in hot water again Thursday, potentially upending his attorneys' strategy in ongoing court battles involving his personal lawyer Michael Cohen.

In a matter of about 90 seconds in a "Fox and Friends" interview, Trump appeared to undercut Cohen's suggestion that he acted on his own in paying $130,000 to porn actress Stormy Daniels before the 2016 election and managed to weaken his own attorneys' arguments in an ongoing fight over records the FBI seized from Cohen's home, office and hotel room.

"It's just a complete nightmare for his lawyers," said Ken White, a former federal corruption prosecutor based in Los Angeles. "The problem isn't just what he specifically admits in these statements. It's constantly generating inconsistent statements about issues that are going to be litigated, and that's what he has been doing."

"For his lawyers, it must be like watching your toddler play in traffic," White said. "You've got a client completely out of control."

The phenomenon is hardly new. Trump's tweets about his travel ban policy have been repeatedly cited in court to undermine the Justice Department's legal defense of those orders and were even raised at Supreme Court arguments this week on the subject. Now, he seems to be throwing more personal litigation into confusion.

On Thursday, Trump first seemed to drift off message when he told the TV hosts that Cohen performed only a “tiny, tiny little fraction” of his legal work. Prosecutors in New York seized on those comments to argue that few of the records the FBI seized from Cohen earlier this month fall under attorney-client privilege protections, despite Trump’s legal team’s arguments to the contrary.

"President Trump reportedly said on cable television this morning that Cohen performs 'a tiny, tiny little fraction' of his overall legal work," prosecutors said in a letter to U.S. District Court Judge Kimba Wood. The prosecution team also noted that another Cohen client, Fox News host Sean Hannity, also minimized the volume of legal work Cohen did for him.

"These statements by two of Cohen’s three identified clients suggest that the seized materials are unlikely to contain voluminous privileged documents, further supporting the importance of efficiency here," prosecutors wrote.

Next, Trump turned to Daniels, whose given name is Stephanie Clifford and who Cohen has acknowledged paying $130,000 in exchange for her silence about an alleged sexual encounter with Trump in 2006.

"Michael would represent me and represent me on some things," Trump said. "He represents me, like with this crazy Stormy Daniels deal, he represented me."

Up to that point, Cohen and Trump's legal team had sought to preserve ambiguity about Trump's role — if any — in the $130,000 payment.

Cohen said he tapped into a home equity line to fund the payment, and Trump recently told reporters he hadn't known about it. After Daniels filed suit last month seeking to void the deal, lawyers for Cohen and Trump repeatedly refused to say whether Trump was party to the agreement.

"President Trump's statement this morning certainly sounds like an admission that he was involved in the Stormy Daniels hush payment," said Paul Ryan of the Campaign Legal Center, which filed complaints in January with the Justice Department and the Federal Election Commission over the payment.

Although Trump did not say he knew about the payment at the time, White, the former prosecutor, said his remarks appeared to tie him closer to events that federal prosecutors in New York are examining as a potential criminal violation of federal law.

That could be a problem, for instance, if prosecutors believe the payment to Daniels amounted to an unreported and illegal donation to Trump's 2016 campaign. Cohen made the payment just before the November election, amid a public furor over alleged sexual misconduct by Trump, and a decade after the reported encounter.

If it was a campaign-related expense, it would not have been illegal for Trump to cover the payment, but it would have been illegal to fail to report it. If Cohen floated the money used for the payment, that could also have been illegal, campaign finance experts said.

"If there is a federal criminal investigation into the Stormy deal, then Trump definitely supplied a link in the chain by admitting being represented, knowingly, by Cohen," White said. "We don't know exactly what the government's theory is. It's reckless to go out there mouthing off without knowing all the factual circumstances."

Some legal pundits who have been more sympathetic to Trump said it’s still possible Cohen kept the president in the dark about the payment to Daniels.

"It doesn’t sound like an acknowledgment he knew it at the time," Harvard Law professor Alan Dershowitz said. "One possibility is he gave over to Michael Cohen authority to settle the case. Maybe he gave him a fund and said, ‘I don’t want to hear about details.’ That’s always possible. It’s also possible he’s contradicting himself.”

Trump’s team also could argue that the payment had nothing to do with the campaign and was made for personal reasons. "There were no campaign funds going into this, which would've been a problem," the president said Thursday.

Lawyers for former Sen. John Edwards (D-N.C.) made much the same argument when he was charged with accepting illegal campaign contributions in the form of supporters' funds directed to cover up his affair with campaign videographer Rielle Hunter. A trial on those charges ended with a hung jury on most counts. The Justice Department declined to retry the case.

For his part, Trump seems assured that he is not and will not be a focus of the investigators now circling Cohen.

"From what I see, he did absolutely nothing wrong. I'm not involved, and I've been told I'm not involved," the president told Fox News.

Daniels’ team sees it otherwise.

"Mr. Trump and Mr. Cohen previously represented to the American people that Mr. Cohen acted on his own and Mr. Trump knew nothing about the agreement with my client, the $130k payment, etc.,” her attorney, Michael Avenatti, wrote on Twitter. “As I predicted, that has now been shown to be completely false."

In a court filing late Thursday, Avenatti argued that Trump's televised comments also undercut Cohen's attempt to use his invocation of his Fifth Amendment rights to stall the civil suit Daniels filed.

"Defendant Trump this morning repeatedly emphasized that in the investigation, 'they’re looking [in]to something having to do with his [i.e., Mr. Cohen’s] business' and not the legal work he did for Mr. Trump in this case, that Mr. Cohen did 'absolutely nothing wrong,' that Mr. Cohen is pleading the Fifth because 'he’s got other things—he’s got businesses,' and that no campaign funds were used to pay the $130,000," Avenatti wrote. He said Trump's statements "contradict" Cohen's on those points and underscore why the civil suit should not be delayed.