Speaker 1: Let’s bring in trial attorney, Brad Micklin. Brad, I think it’s probably fair to say this probably won’t have political fallout for the President given his supporters voted for him knowing he’s not a saint. But what could the legal fallout be for the President?
Brad Micklin: Well, it’s difficult to say because it’s just coming out now. My understanding of some of the research and comments is that there are other tapes that are going to follow, so I think as they come out and develop we’ll get more information. But there’s also been issues about campaign financing and issues that may be involved with these alleged payoffs that I think could become either civil penalties once in a while, even criminal penalties.
Speaker 3: Criminal penalties because of not only campaign finance laws, but if Cohen is suggesting that he perhaps misrepresented to a bank when he got a loan to help pay this off, if he was misrepresenting what this was for and he can now say, “Oh, and by the way I told this guy, Donald Trump, what it was really for,” then there’s a conspiracy that could be alleged involving Donald Trump.
Brad Micklin: Could be. I’m not sure … I haven’t heard much about the conspiracy, so it’s an interesting point. I know there’s big questions about anything of value being exchanged, whether it was by Cohen on Trump’s behalf, or from Trump back to Cohen. I think as we find out what these payments were or were not for, whether they were to foster the campaign, or whether they were personal payments I think is going to determine whether or not there’s a conspiracy.
Speaker 3: But I guess to my question, apparently Cohen got a home equity loan, or home mortgage loan that he used as collateral to help pay off Stormy Daniels, for example. If he misrepresented on a bank form what the money was for, that’s a pretty clear cut and dry case of making false statements or wire fraud.
Brad Micklin: Well, could be. But the question’s going to be, what was the motive and whether was he put up to this by then running President Trump, or did he do it on his own fruition? I think it’s going to be interesting because I don’t think that there’s going to be direct tie between the President and Cohen. The problem I have with it is because in the tape he obviously knows he’s recording and President Trump doesn’t, so you have to give some credibility questions to the statements he’s making in all the statements and in all the tapes that he may produce.
Speaker 1: From a lawyer’s point of view, when you’re making a case wouldn’t you put out the most damning evidence at the beginning? Does that lead you to believe that this might be the most damning tape he has, even though a lot of it is inaudible?
Brad Micklin: It’s hard to say. I’m not sure why he would release this now. First, there’s a question of whether he should’ve released it at all. I mean, everybody’s entitled to confidentiality protection when they meet with their attorneys and he didn’t advise President Trump that he was recording this. There’s very little reason why he would’ve had to produce it in the first place. There’s only a few exceptions to confidentiality in the first place and they have probably since long passed, so I’m not even sure why he released this one now.
Speaker 3: Is it possible this is a squeeze play by Lanny Davis? In other words, Lanny Davis I’m sure is driving the U.S. Attorneys here in New York, or handling the Michael Cohen stuff. He’s driving them crazy by putting this out in the public domain, but he might also be making the argument, “Hey, I have valuable things. My client deserves a better deal than maybe what you, the U.S. Attorneys Office is offering him in exchange for his cooperation on issues like Donald Trump.”
Brad Micklin: I would agree. I thought when I heard this, I hate for the pun to come out, but I thought they were trumped up allegations. Cohen obviously has a lot of incentive for releasing this at this time and if he has others that he hasn’t released, the question is why hasn’t he released them? What is he looking for? Because it’s clear he’s damaged his relationship with Trump, so there’s no presidential pardon down the line for him. We now have to look to, what is he trying to gain for his own side?
Speaker 1: Let’s go back to attorney-client privilege. What happens when someone’s lawyer is no longer on their side, possibly on the opposite side? Do they lose attorney-client privilege?
Brad Micklin: Usually not. There are very limited exceptions to attorney-client privilege. Most states and New York, I believe, have similar ones to Jersey. You can breach confidentiality if there’s serious bodily injury that’s going to occur to somebody, if there’s a crime that’s going to be committed and that’s sort of the spin that they put on to this, but I didn’t see anything that would suggest any of those exceptions apply, especially since the conversation happened so long ago. It’s only been released now, so you couldn’t of been releasing it to protect any victim or to prevent any crime.
Speaker 1: [crosstalk 00:04:15] What are the … Sorry. What are the consequences of breaching attorney-client privilege?
Brad Micklin: Well, it could be ethical consequences. They’re obviously the laws that protect all of us and there’s ethical rules that protect and govern what attorneys can do. There’s possible sanctions. He could be suspended. He could be disbarred. Depends on what the rules say about when he can release and why he did actually release this one.
Speaker 3: But that would require motion by Donald Trump to claim that he has somehow been injured by all this. This seems like there’s every indication that Michael Cohen is cooperating with federal prosecutors and the federal prosecutors have at least been satisfied that Michael Cohen is providing them with information that satisfies the criminal exemption to attorney-client privilege.
Brad Micklin: Right. But my understanding is that they’ve already seized all the tapes from his office. This was released, I believe, by him or his agents. That’s why I have a question about his motive to release it at this point. Can’t possibly be to protect against a crime. If anything, I think it’s just to protect himself.
Speaker 3: I think that’s absolutely right. I think what Cohen and Lanny Davis are doing here is they’re trying to increase his value to not … Just to the prosecutors.
Brad Micklin: Right.
Speaker 3: We still don’t know what the deal is [crosstalk 00:05:16] for his cooperation or what the terms are. Maybe they’ve got Michael Cohen on something serious and he’s saying, “Look, charge me or I’ll accept something to something minor and here’s why you need to give me a deal because I’m so valuable on all this other stuff.”
Speaker 1: Or this may backfire-
Speaker 3: Right.
Speaker 1: And it won’t help him.
Brad Micklin: Right.
Speaker 1: Brad Micklin, thanks so much. Thanks for helping us understand that.
Brad Micklin: Thanks for having me.