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U.S. Attorney filing: Cohen’s conversations with Trump about Stormy Daniels might not be privileged

A juicy tidbit from the U.S. Attorney’s response to Cohen’s bizarre request to let him decide what material is privileged and what isn’t in the files the FBI seized from him. Remember, Trump and Cohen are in a Catch-22 with respect to Daniels. If Trump says he knew about the deal all along, he’d have to explain why neither he nor Cohen reported the hush-money payment as a campaign contribution. If Trump says he *didn’t* know about it and had nothing to do with it, it raises an obvious question: Does that mean Cohen wasn’t acting as his lawyer on the deal? Because if he wasn’t…

What do Trump and Cohen do now? If the feds discover evidence of a conversation in which Trump told Cohen to make the payment to Daniels, they can argue that that should be admissible as evidence of a campaign-finance violation because there’s no privilege to shield it. It was just a friend talking to another friend about a joint venture, not a client talking to his lawyer. There was no attorney/client relationship on the deal, seemingly by POTUS’s own admission.

In fact, the U.S. Attorney goes on to argue that very little of the material they took from Cohen is likely to be covered by attorney-client privilege. It’s his business deals that are the focus of the investigation, they claim, not his legal activities. Plus, the only client he appears to have is Trump himself. Any communication with anyone else would be non-privileged by definition. Here’s an … interesting passage too:

He’s a “fixer” and a business aide to Trump, not really a lawyer. His communications with Trump will still be privileged *if* they involve the giving or receiving of legal advice (and don’t involve complicity in a crime or fraud), but the U.S. Attorney thinks there just aren’t many communications like that in the materials they’ve seized. In fact, there are zero emails between Cohen and POTUS, who doesn’t use email.

And how would the U.S. Attorney know that for sure? Brace yourself:

They’ve been reading Cohen’s emails covertly. Lucky for POTUS that he hasn’t sent any. And lucky for POTUS that he hasn’t done anything rash and stupid like dialing Cohen up to chat after the FBI raid, since it’s entirely possible that that conversation would have been recorded on a wiretap and … uh, wait. What?

President Trump phoned his longtime confidant, Michael D. Cohen, to “check in” on Friday as lawyers for the two men went to court to block the Justice Department from reading seized documents related to Mr. Cohen’s decade of work for Mr. Trump, according to two people familiar with the call.

It is not clear what else they discussed in a call that came days after a series of F.B.I. raids. Depending on what was said, the call could be problematic for both men, as defense lawyers often advise their clients not to talk to each other during investigations. Mr. Trump and Mr. Cohen still were trying to determine what exactly was seized.

Were the “two people familiar with the call” FBI agents who listened in? In my mind’s eye, I see Ty Cobb literally on his knees with his hands together in prayer in front of Trump, begging him not to pick up the phone, but oh well. You don’t suppose POTUS said anything obstruction-y to Cohen, like reminding him that Scooter Libby just got pardoned despite obstructing justice and the same might happen for other loyal soldiers, do you?

At least the news can’t get any worse for Cohen and Tr– wait, what?

Federal agents who raided Cohen’s home, office and hotel room this week seized recordings, sources familiar with the raid tell ABC News.

Sources say Cohen was known to record conversations with reporters so he could show them to Trump in order to deal with reporters on certain stories. Cohen was known to record other types of discussions and communications too, which sources say, could include communications with Trump. The contents or details of the recordings seized is not clear.

One more detail:

Public pronouncements that further sever the attorney-client relationship between Trump and Cohen maybe aren’t the smartest move when the feds are already arguing that their communications are admissible because there’s no real attorney-client relationship. If POTUS is going to keep calling him, it’d be useful to him if there was at least a pretense that he was calling for legal advice. Again: Oh well.

In other Cohen news, the Journal reports that he brokered a big $1.6 million hush-money deal for the former mistress of Elliott Broidy, a major GOP fundraiser and, like Cohen himself, a deputy finance chairman of the RNC. Broidy tendered his resignation from the RNC today because of a tragic detail in the story: The woman with whom he was cheating got an abortion towards the end of their affair, a period during which he “offered to help her financially.” Unlike the Stormy Daniels deal, there appears to be nothing incriminating about this contract since there are no campaign-finance implications to it. An interesting detail, though, is that Cohen allegedly used the same aliases in the Broidy agreement — David Dennison and Peggy Peterson — as he used in the Trump/Daniels agreement, suggesting that he has a “form” hush-money contract. How many of those agreements is he drafting to need a form agreement to work off of?

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