Attorney Michael Cohen’s simultaneous relationship with Donald Trump and several blue chip companies that paid him for insight into the new president strikes legal experts as unusual and has triggered questions about client confidentiality.
Cohen’s arrangement stands out, even in Washington where corporations, trade associations and other organizations spend upward of $3 billion annually to influence legislation and get access to the highest levels of government. He appears to have worked as Trump’s personal lawyer while at the same time accepting tens of thousands of dollars from third parties to disclose information about his client.
“If Cohen was representing the president as an attorney, which he has certainly argued was the case, then Cohen’s obligations as a member of the bar would seemingly make this arrangement troubling,” said Josh Rosenstein, a partner with the Washington firm Sandler Reiff and a specialist in lobbying compliance.
Rosenstein said that if Cohen had Trump’s permission to reveal confidential information about him, then the implications may be significant. For example, it may be possible evidence that Trump knew what Cohen was doing and was involved, he said.
“So the devil is in the details,” Rosenstein said. “What did the president believe these payments would be used for? What did the president believe he was giving to the companies in exchange for the payments?”
Here are questions and answers about legal and ethical scrutiny Cohen is facing:
ARE THERE ANY RECENT PARALLELS TO COHEN’S ARRANGEMENT?
Not really, said Craig Holman of Public Citizen, a nonprofit watchdog group. “It strikes me as exceedingly brazen,” said Holman.
But self-described “fixers” like Cohen who make bad stories go away or help presidents with other thorny matters are not uncommon.
Vernon Jordan served in a fixer role for former President Bill Clinton. A close friend of Clinton’s, Jordan chaired his presidential transition team in 1992 while also working for the powerhouse lobbying firm Akin Gump. Jordan, occasionally called the “First Friend,” helped White House intern Monica Lewinsky find a job after Clinton ended his intimate relationship with her in May 1997.
WAS COHEN A LOBBYIST?
Cohen wasn’t registered as one. Paul S. Ryan of Common Cause said Cohen had plenty of wiggle room to help his corporate clients, which included AT&T and pharmaceutical giant Novartis, without running afoul of lobbying rules. Those rules, for instance, require that lobbyists register as such only if they’ve spent at least 20 percent of their time with a client over a three-month period doing lobbying work.
“There is a whole lot of influence peddling that Michael Cohen could do without falling into the scope of federal lobby legislation,” said Ryan, vice president of policy and litigation at the good government group. He added, though: “It’s slimy. It looks like an effort to personally profit from his relationship with the president, and hide it all from the public through a shell company.”
AT&T said Cohen’s company, Essential Consultants, did no legal or lobbying work for the company. Novartis said Cohen was hired to advise the company as to how the Trump administration may approach health care policy.
But Holman of Public Citizen said Cohen’s actions appeared to be well beyond the gathering of “political intelligence” and dispensing advice.
“Cohen’s corporate clients had business pending before the Trump administration,” he said. “Novartis needs FDA clearance for the sale of its drugs and supports rolling back (the Affordable Care Act). AT&T has a lucrative business merger being blocked by Trump’s Department of Justice.”
WAS COHEN OBLIGATED TO INFORM TRUMP OF HIS CORPORATE CLIENTS?
Cohen’s payments from companies while acting as a personal lawyer to the president may raise legal issues besides whether the consulting work constituted lobbying.
Government ethics lawyer Kathleen Clark said Cohen had an obligation under New York state law to inform Trump of the consulting work if it potentially conflicted with Cohen’s work as a personal lawyer to the president. She said failure to inform the president, and get his consent, could expose Cohen to the loss of his law license or other disciplinary measures.
“Trump has a right to know that AT&T is paying Cohen,” said Clark, a law professor at Washington University in St. Louis. “These financial relationships may affect the degree to which he trusts what Cohen tells him.”
WAS COHEN BOUND BY THE ETHICS PLEDGE REQUIRED FOR TRUMP’S APPOINTEES?
No. Cohen isn’t an employee of the U.S. government and therefore not bound by the pledge, which restricts influence peddling to those coming into or leaving the Trump administration. The pledge, which Trump instituted shortly after his inauguration, prohibits former lobbyists, lawyers and others from participating in any matter that they worked on for private clients within two years of going to work for the government.
Even though the pledge didn’t apply, Brendan Fischer of the nonprofit Campaign Legal Center said Cohen’s arrangement shows that Trump has failed to “drain the swamp” in Washington as he promised he would do.
“This is a snapshot into a dark form of influence peddling,” Fischer said.