Michael Cohen To Enter Two "Guilty" Pleas

It was announced today that attorney Michael Cohen will enter two "guilty" pleas for violating campaign finance laws by paying off porn star Stormy Daniels and Playboy model Karen McDougall, to keep them silent during the last presidential campaign. Apparently Cohen will state that he paid these women at the direction of Donald Trump.

Regardless whether you do or do not support Trump, there are many thorny issues in this case, the type I deal with as a defense attorney on a regular basis:

1. Before I take any case, I have to ask myself whether my interests conflict with those of the client who wishes to hire me. In the case of Mr. Cohen, he hired Lanny Davis, an attorney who has been a spokesman for Bill and Hillary Clinton and the Democrat National Committee. In Mr. Cohen's case, Mr. Davis has a very strong interest in destroying Donald Trump and using confidential information in the possession of his client against President Trump. It would be in Lanny Davis' interest to have Mr. Cohen enter some kind of a "guilty" plea concerning the charges against Cohen, and to implicate Trump in his client's criminal behavior, as a means of obtaining some degree of leniency for Cohen.

The potential conflict arises as follows: how about attacking the charges themselves as being baseless, in that any money paid was not a campaign contribution but Donald Trump's personal cash? While this might be a great defense for Cohen, it would not allow the DNC to use a criminal conviction of one of Trump's inner circle members to attack the President and set him up for possible impeachment.

Another possible conflict arises if this means of defending Cohen avoids contesting the legality of the search warrant against Cohen. Many have discussed the shaky ground of the government in getting a search warrant against the attorney for someone who is the real target of a criminal investigation. This is a matter which could very well end up in the U.S. Supreme Court.

I do not have any indication that this matter was pursued in defense of Mr. Cohen, and I would ask, "Why not?" This goes to the heart of the right of all Americans to consult with their attorneys in private, without any concern that the government is going to invade that privacy.

Again, if this line of defense were successful, Mr. Cohen might well be exonerated. Instead, he is pleading "guilty" to two criminal charges with the tactic of promising to present damaging evidence against his client, obtained with a promise of confidentiality between attorney and client. This method of defending Cohen has the added benefit of damaging President Trump, which is in Lanny Davis' interest as a spokesman fo the DNC.

2. The second thorny issue, which is related to the first, is the absolute violation of the attorney-client privilege by Michael Cohen. He violated this by hiring Lanny Davis and sharing confidential recordings of discussions of private legal and/or political matters with Mr. Davis. That is more eggregious than Democrats in the FBI planting a "mole" in the Trump campaign to get inside information about a political opponent.

Cohen violated this a second time by having Lanny Davis disclose confidential matters discussed between himself and the President with the press.

Cohen violated this a third time by having Lanny Davis disclose these confidential matters to the New York State prosecutors.

Mr. Cohen should be permanently disbarred for this behavior. This is an absolute violation of his client's right to counsel, and no one should have to fear that his lawyer is going to rat on him.

3. Will there be criminal charges against President Trump following the "guilty" pleas of Michael Cohen? No, because a sitting President cannot be indicted. The only means of pressing an issue like this is impeachment.

4. If Trump could have been indicted, could the evidence against Cohen be used against Trump? I do not believe so, for several reasons:

a. There was no warrant against Trump when Cohen's records were seized, and Trump had a right to an expectation of privacy concerning any documentation of attorney/client conversations with Cohen. Without getting Trump's permission to search Cohen's office, and without getting a judge to sign a warrant concerning Trump, any evidence seized would have violated Trump's right to unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution.

5. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." United States Constitution, Amendment VI.

The Sixth Amendment to the United State Constitution protects defendants in criminal cases from having their attorneys share information with prosecutors. The State is absolutely prohibited from using such information in a prosecution of a defendant. United States v. Morrison, 449 U.S. 361,365-366 (1981).

If the prosecution were to use such information against a defendant, and a conviction resulted, the conviction would have to be reversed.

With all this being said, Robert Muller had to know that no criminal action could be pursued against President Trump concerning any statements by Michael Cohen. A Cohen prosecution could in no way set up a criminal prosecution against the President. However, putting this confidential information out to the general public appears to have been done to embarass the President in hopes that the upcoming election will result in Republicans losing the majority in Congress and allowing a Democrat-controlled Congress to impeach the President. Impeachment proceedings are not governed by the same rules as criminal proceedings. A simple majority may get the President impeached, but it takes a 2/3 Super Majority of the Senate (67 votes) to remove a President from office via an impeachment trial.

It has never been done before. I don't believe President Trump could be removed from office by having 67 senators vote him out of office. Even if Democrats prevail in taking control of the House and Senate, they simply would not have to votes to remove President Trump from office. Impeachment? Perhaps, if they gain a majority of House of Representative seats in the next election. Removal after a trial? No.


Allen Browning is an attorney in Idaho Falls, Idaho who handles personal injury and criminal defense. He has over 30 years of experience and handled thousands of cases. Allen handles cases from all over Idaho. Call (208) 542-2700 to set up a free consultation if you are facing legal trouble or you have been involved in an accident.

Also, check out browninglaw.net for more information about Allen and Browning Law.

Allen Browning can help with all personal injury claims including motor vehicle accidents,truck accidents, auto accidents, serious and disabling accidents, and wrongful death claims.

Allen Browning is an Idaho Falls attorney who can also help with drunk driving (DUI), traffic violations, Felony, Misdemeanor, Domestic Violence, Drug Crimes, Theft, Juvenile Crimes, battery and assault charges, Violent Crimes, and Probation/Parole Violations. He is one of the most experienced and successful criminal defense attorneys in Idaho.

Allen is able to provide his services if the incident occurs in the following Idaho Areas: American Falls, Arco, Blackfoot, Boise, Burley, Driggs, Idaho Falls, Malad City, Pocatello, Rexburg, Rigby, Salmon, St. Anthony, Twin Falls, Bannock County, Bingham County, Bonneville County, Butte County, Cassia County, Clark County, Fremont County, Jefferson County, Lemhi County, Madison County, Oneida County, Power County, Teton County, and Twin Falls County.  


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