Cohen Probably Weighing His Options More than Anything

Veteran defense attorney Joe Hayden says that given the limitations Special Counsel Robert Mueller put on his testimony and the logistical challenges of the questioning, the House Judiciary Committee hearings accomplished as much as was realistically possible to inform the public and confirm the high points of the Mueller Report.


Speculation has been rampant among those in the media and the political world for the past 24-hours about unrefuted news stories that Michael Cohen, President Trump’s long-time personal “lawyer,” is about to switch lawyers and whether or not this switch is a signal that he will plead guilty to some charges and incriminate Trump.  Before people take too long a lead off first base on this sensational possibility, however, the circumstances suggest to me that Cohen is more likely weighing his options rather than already having crossed the Rubicon.

When a client in the middle of a federal investigation decides to change lawyers, it is generally for one of two reasons:  one, there could be financial issues between the attorney and client which are getting worse and not better; or, two, there is a disagreement about what would be the best resolution as well as the strategy to achieve what the client wants as the best result.  It should be remembered that before they plead guilty and decided to cooperate, both Michael Flynn and Robert Gates switched their legal teams.  Here, since the present federal investigation is being run by the United States Attorney’s Office for the Southern District of New York rather than by Robert Mueller in Washington, Cohen might want a legal team more familiar with the Southern District than his present legal team.

Although the legal bills in the past and the future are undoubtedly a serious consideration, I suspect Cohen will be more concerned about who can get him the best result in the Southern District.  Part of the issue for Mr. Cohen will revolve around how serious is his legal jeopardy.  The x-factor in this analysis is how incriminating to Cohen (and others) are the documents, texts, and emails in Cohen’s possession which were seized by the government.  (At its worse, this type of evidence can be devastating.) Most of the material is probably not privileged, but even if some is the privilege can be pierced by a finding by a judge that the attorney-client material comes under the crime/fraud exception and is no longer privileged.

It would be no mean feat for a lawyer to obtain a cooperation plea which would be satisfactory to Mr. Cohen because there will be a number of hurdles to jump through.  First of all, the attorney would have to obtain a global settlement which would resolve all potential criminal matters from federal authorities in the Southern District, the Mueller investigation, and perhaps even the Office of Attorney General in New York.  The defense would also have to attempt to protect Mr. Cohen at least from any criminal tax exposure.  However, in order to arrive at such a complex resolution, Mr. Cohen would have to be willing to fully cooperate with every law enforcement agency against anybody and everybody, including Trump.  More importantly, his cooperation would have to be powerful and of substantial assistance to the government against somebody who is not already charged.

As can be seen from what has been described above, this decision by Cohen to switch lawyers is intriguing.  In my view, the ultimate decision is yet to be made – especially with the possibility of a pardon or additional help with legal fees hanging out there.

Veteran Defense Attorney Joe Hayden is the legal analyst for InsiderNJ.

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