Michael Cohen To Plead The Fifth

Michael Cohen will invoke his rights under the Fifth Amendment in response to any questions asked in discovery in the civil suit filed against him by Stormy Daniels. That's really the only option he has.

Michael Cohen is telling the Federal Judge presiding over the civil lawsuit filed by adult film star Stormy Daniels seeking to invalidate the October 2016 agreement under which she was paid to remain silent about her relationship with President Trump that he intends to invoke his rights under the Fifth Amendment due to ongoing criminal matters:

Michael D. Cohen, President Trump’s longtime personal lawyer, will invoke his Fifth Amendment right in a lawsuit filed against the president by Stephanie Clifford, the pornographic film star better known as Stormy Daniels.

Mr. Cohen’s decision, disclosed Wednesday in a court filing in California, where the suit was filed, came a day before a federal judge in Manhattan was set to hold a hearing regarding materials seized from Mr. Cohen during an F.B.I. raid earlier this month.

Mr. Cohen cited the Manhattan investigation in his filing on Wednesday, saying that, if called as a witness in Ms. Clifford’s lawsuit, “I will assert my 5th Amendment rights in connection with all proceedings in this case due to the ongoing criminal investigation by the F.B.I. and U.S. Attorney for the Southern District of New York.”

Ms. Clifford was paid $130,000 to keep quiet about claims that she had an affair with Mr. Trump. She sued last month to get out of the nondisclosure agreement she signed in October 2016, alleging that it was void because Mr. Trump had never signed it.

Citing the Fifth Amendment in the Clifford case allows Mr. Cohen to avoid being deposed and revealing sensitive information in the more important criminal investigation. That investigation — which prosecutors say has been going on for months — became public in dramatic fashion on April 9, when agents from the New York office of the Federal Bureau of Investigation raided Mr. Cohen’s office, apartment and a room at the Loews Regency Hotel he had been using. The inquiry is said to be focusing on hush-money payments that Mr. Cohen made to — or helped arrange for — Ms. Clifford and Karen McDougal, a former Playboy model who has also said she had an affair with Mr. Trump.

For days now, prosecutors from the United States attorney’s office in Manhattan have been sparring with Mr. Cohen’s lawyers — and with lawyers for Mr. Trump — for the right to review the records first, a step that will shape the contours of how the government presses its investigation into whether Mr. Cohen tried to suppress negative news coverage of the president in the run-up to the 2016 election.

Lawyers for Mr. Cohen suggested on Wednesday that they were already taking steps to gird themselves for battle. In new court papers, they said that they were setting up “war rooms” to review the seized materials, testing and vetting “systems” to process them, and marshaling what seems to be a small legal army of “operations and technology personnel, paralegals, discovery experts, associates and senior reviewing partners.”

This, of course, is not entirely unsurprising news given the context of the situation that Cohen finds himself in at this point. It’s only been a few weeks since his office, home, and hotel room were the subject of searches by F.B.I. agents acting pursuant to a warrant that, based on reports, was seeking a wide-ranging scope of documents that encompasses not only Cohen’s involvement in the payoffs to Daniels and Playboy model Karen McDougal but also a number of other issues. Reported to be among those are his involvement in the purchase and sale of New York City Taxi Medallions, something that has been at the center of ongoing criminal probes at both the Federal and State level in New York for some time now. Additionally, it’s been reported that agents also gained access to documents related to other legal and business matters that Cohen may have been involved in for the man who has been his principal client for the past decade or more, who just happens to be the President of the United States. His lawyers in the Daniels litigation have reportedly told the Judge presiding in that case that they expect that their client will be indicted by the U.S. Attorney for the Southern District of New York at some point within the next 90 days.

In that context, it would be absolutely foolish for Cohen to testify on the record, whether it’s in a deposition, in response to written Interrogatories during discovery (which under the applicable rules a respondent is required to sign and swear before a Notary are accurate), or at a hearing in the Daniels civil case, either before charges are filed or after they are filed and before they are resolved. If he does, then anything he says in those contexts could be used against him by investigators, could be used against him at a trial or could be used to impeach his testimony if he were to testify or tell investigators something that was somehow contradictory to what he testified to in the previous matter. Furthermore, it would be legal malpractice for his attorneys, whether it be those representing him in the criminal matters in New York or those representing him in the civil matter in California, to not advise him to exercise his rights under the Fifth Amendment in order to protect his rights.

All of this is somewhat ironic, of course, because of what Cohen’s boss has said about pleading the Fifth Amendment in the past:

During the presidential election, he repeatedly slammed former staffers for Democratic presidential nominee Hillary Clinton who took the Fifth during a congressional probe into her use of a private email server.

Computer specialist Bryan Pagliano, the former State Department employee who had helped set up Clinton’s private email server, asserted the Fifth more than 130 times in June to avoid answering deposition questions from lawyers with the conservative legal advocacy group Judicial Watch. Two computer experts contracted to handle Clinton’s email server took the Fifth months later — and two Clinton lawyers who spoke to FBI investigators got immunity for turning over laptops.

Trump was not impressed.

“The mob takes the Fifth,” he said at an Iowa campaign rally in September. “If you’re innocent, why are you taking the Fifth Amendment?”

He weighed in numerous times during the campaign, generally sounding disgusted and full of disdain.

“She lied to Congress under oath, and her staff has taken the Fifth Amendment and got immunity deals,” he said at an October rally in Reno.

“It’s worse than Watergate; it’s a bigger deal than Watergate,” he said at another rally that month in Loveland, Colo.

Here’s the video of Trump making these comments on the campaign trail:

As the linked article notes in an unquoted portion, Trump’s past position was ironic and indeed hypocritical at the time since he himself has made use of the Fifth Amendment privilege to avoid answering questions in civil proceedings. The most notable occasion came in 1990 during the course of his divorce from his first wife Ivana Trump. During a deposition in that case, Trump invoked his Fifth Amendment rights to avoid answering 97 separate questions, most of which concerned his relationship with other women as well as some financial matters. There are also reports that Trump has taken advantage of the privilege during similar depositions in lawsuits involving his business and financial affairs. The hypocrisy in this is, of course, self-evident.

Trump’s comments during the campaign are, of course, utter nonsense. As I have said in the past, seeking the protection of the Fifth Amendment right against self-incrimination cannot be interpreted as an admission of guilt by a Court, and it should not be interpreted in that manner by members of the general public. The Supreme Court also spoke to the issue in a 1956 case called Slochower v . Board of Higher Education of New York City:

At the outset, we must condemn the practice of imputing a sinister meaning to the exercise of a person’s constitutional right under the Fifth Amendment. The right of an accused person to refuse to testify, which had been in England merely a rule of evidence, was so important to our forefathers that they raised it to the dignity of a constitutional enactment, and it has been recognized as “one of the most valuable prerogatives of the citizen.” Brown v. Walker, 161 U.S. 591, 610. We have reaffirmed our faith in this principle recently in Quinn v. United States, 349 U.S. 155. In Ullmann v. United States, 350 U.S. 422, decided last month, we scored the assumption that those who claim this privilege are either criminals or perjurers. The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury. As we pointed out in Ullmann, a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise migh be ensnared by ambiguous circumstances. See Griswold, The Fifth Amendment Today (1955).

The Fifth Amendment privilege is among the most important in the Constitution, and it is one that is available to people who are asked to testify in public and who believe that their testimony could be used as evidence against them in an ongoing or subsequent investigation.

The more interesting question that Cohen’s representation to the Judge in the civil case raises, of course, is what impact all of this could have on the civil case. Cohen’s decision to invoke the Fifth Amendment essentially foreclose Daniels and her attorney from seeking to obtain discovery from him even if it is just in the context of a hearing on the validity of the arbitration clause in the agreement. Without that testimony, it’s hard to see how the case can go forward until the issues surrounding Cohen’s criminal culpability or lack thereof are resolved. This could mean that Cohen’s civil lawyers will seek to have the Los Angeles proceedings stayed until the New York matters are resolved, something that could take a considerable amount of time. Daniels and her attorney will no doubt object to any request that Cohen’s attorneys might make in that regard, but the fact that Cohen intends to invoke the Fifth Amendment in this case effectively makes it much harder for the Judge to resolve even the limited legal issues dealing with the arbitration clause. As of yet, though, Cohen’s attorneys have not made any such move so it’s a bit premature to be speculating on that issue.

At the very least, though, we know that Cohen will be doing what his lawyers have advised him to do. For his own protection, that’s really the only option he has at this point.

Here’s the pleading filed by Cohen’s attorney in the Los Angeles case:

Clifford v. Trump Et Al by Doug Mataconis on Scribd

FILED UNDER: Law and the Courts, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. MarkedMan says:

    Invoking the fifth cannot be a consideration for the legal system, but it sure as heck is something we can use to judge in our personal opinions. Personally, I feel the context is important. For someone terrified of getting caught up in an investigation and having it cost them their life savings, then yeah, seeking immunity in return for not taking the fifth is probably a good strategy even if you are innocent. But aside from such rare cases people that have nothing to hide rarely invoke it. Yes, Cohen may be innocent of whatever crime the feds are looking to slam him with, but to me, taking the fifth means that he is guilty of something.

  2. KM says:

    Huh, don’t only Mob lawyers do that? Coulda sworn that was Donald’s opinion…..

  3. michael reynolds says:

    Well, I’ve been told that this sort of thing doesn’t tell us anything because it’s not ‘evidence.’ The lawyer to the POTUS is taking the 5th when it comes to his efforts to silence Trump’s adultery partner. This tell us nothing. It certainly must not in any way lead us to imagine that Trump actually had an affair with Stormy Daniels (actually, Trump just confirmed that on Fox n’ Friends) or that there was a payoff, (yeah, he confirmed that, too.)

    Your honor, I move to exclude all suggestion that Trump’s fixer taking the 5th means anything, anything at all. The mere fact that Cohen is acting super-guilty is without meaning and suggests nothing.

    Now let’s resume our wise chin-stroking on the sidelines and keep a mind of such openness that it has no equal in equanimity, and is certainly much more open-minded than we’d be if the accused were poor or black or not famous. Special standards for special people.

  4. Mister Bluster says:

    This may have been addressed somewhere and I’ve missed it.
    How does this affect public statements Cohen has already made.
    “I made the payments with my own money.” “Trump didn’t know” (Ha!)

    Since none of this was under oath do I assume that it’s like he never said any of it?

  5. Mister Bluster says:

    Cohen: Trump didn’t know I paid her off with my own money. Wait. What? Trump says he knew I paid her off! Damn it Donnie I thought we had this all worked out!

  6. Joe says:

    @Mister Bluster:

    Even though his prior public statements were not under oath, they could still be used to question the credibility of future contrary statements – they just have less weight.

  7. Gustopher says:

    Trump invoked his Fifth Amendment rights to avoid answering 97 separate questions, most of which concerned his relationship with other women

    I was not aware that you could invoke the fifth for something that was merely disgusting, where there was no chance of things being illegal. Huh.

    “What did you have for breakfast?”
    “I’ll take the fifth.”

    (Ok, I guess you could have killed and eaten an orphan for breakfast…)

  8. Gustopher says:

    At the very least, though, we know that Cohen will be doing what his lawyers have advised him to do. For his own protection, that’s really the only option he has at this point.

    Well, that or make a deal.

  9. @Mister Bluster:

    Those statements could be use to impeach his testimony, if he testified

  10. Daryl's other brother Darryl says:

    Dennison:

    “The mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?”

    Comey quotes Dennison saying:

    “I need loyalty. I expect loyalty.”

    Comey continues:

    “The demand was like Sammy the Bull’s Cosa Nostra induction ceremony,” referring to Salvatore “Sammy the Bull” Gravano, a former leader of the Gambino crime family, whose testimony ultimately helped convict mob boss John Gotti.

  11. @Gustopher:

    It’s quite probable that Trump did this because adultery is a crime under NY Law, albeit one that is rarely prosecuted. Nonetheless in states where that is the case divorce attorneys routinely advise their clients to take the Fifth on the question.

  12. Mister Bluster says:

    Kinda like when Jimi asked Joe where he was going with that gun in his hand.
    When Joe says “I gave her the gun!” and Jimi testifies in court that he heard Joe say that how much weight can the jury give that statement? Or is it just hearsay?
    (I’m assuming we have a body.)

  13. Daryl's other brother Darryl says:

    @michael reynolds:

    Trump actually had an affair with Stormy Daniels (actually, Trump just confirmed that on Fox n’ Friends) or that there was a payoff, (yeah, he confirmed that, too.)

    Imagine if President Hillary Clinton called into the Rachel Maddow show (not a valid comparison with F&F) and shrieked incoherently for half an hour?

  14. Todd says:

    Doug,

    I was listening to a segment about this on NPR this morning, and I can’t remember exactly what legal term they used, but something to the effect of: since Michael Cohen invoked his 5th Amendment rights, the Judge or Jury in a civil case may be able to infer that the opposition (Daniels’) argument becomes more credible.

    In other words, instead of indefinitely delaying the case, could this make it more likely that Daniels wins her argument relating to the arbitration clause?

  15. Kathy says:

    Can he settle the civil matter rather than taking the 5th? Or could that also, depending on the terms of the settlement, be used against him?

  16. Daryl's other brother Darryl says:

    Breaking….Cosby found guilty.

  17. Joe says:

    @Kathy:

    Yes, he could settle the civil matter rather than taking the 5th. Although the terms of the settlement could be problematic, a good lawyer (not Cohen) could write around that problem.

  18. MarkedMan says:

    @Doug Mataconis:

    Nonetheless in states where that is the case divorce attorneys routinely advise their clients to take the Fifth on the question.

    OK. But if he had never committed adultery I would assume the lawyer would be ok with him saying that. I’ll tell you this for sure: if I am on a jury and someone testifies under oath “I never had sex with that woman”, maybe I believe him and maybe I don’t. But he says, “I plead the fifth”, then I assume he was slipping her the magic pickle. Judge can tell me I have to pretend all they want to, but it doesn’t change what’s inside my head.

  19. Pylon says:

    I don’t think the judge can make an adverse inference from his refusal to testify. But it will result in Cohen providing no evidence to rebut anything Daniels says about him, unless he has other witnesses. Civil cases are decided on a preponderance of evidence, so a lack of response could swing the case.

    On another point, I don’t think he can evade discovery, unless he claims that any and all questions he might be asked would tend to incriminate him if answered. Daniels’ lawyer would argue “how does he know what I’m going to ask”? I’ve always understood the Fifth to apply to specific questions, not giving evidence at all.

  20. michael reynolds says:

    I always said Trump was stupid, but I am nevertheless surprised by the degree of Trump’s stupidity. Does the man dress himself? Hi, I’d like to go on the teevee and fck my own lawyers right up their briefcases, cuz I’m Donald Trump and I are a genius. Jesus H, he’s dumb. Have you people listened to this Fox and Friends interview? The man is nuts. Nuts and stupid. Even the culties must be able to hear that flop sweat from Great Leader.

  21. Kathy says:

    @michael reynolds:

    If Trump’s brains were dynamite, he couldn’t blow his nose.

  22. CSK says:

    During her bank robbery trial, Patty Hearst took the Fifth 42 times. That went over so well with the jury that they found her guilty.

  23. CSK says:

    @michael reynolds:

    The Trumpkins did what they always do–they pretended it never happened.

  24. HarvardLaw92 says:

    On a brighter note, a special master has now been appointed to review the evidence seized from Cohen’s premises.

    And she is a killer. Some highlights of her CV:

    Special Attorney, Organized Crime & Racketeering, Criminal Division, DOJ – 1973

    Special Attorney, Manhattan Strike Force Against Organized Crime and Racketeering, DOJ – 1973 to 1977

    Assistant United States Attorney, Southern District of New York – 1977 to 1987
    Chief, General Crimes Unit -1983 to 1984
    Chief, Organized Crime Unit – 1984 to 1987

    First Assistant District Attorney, New York County District Attorney’s Office – 1987 to 1995

    Judge, US District Court for the Southern District of New York – 1996 to 2013 (Clinton appointee)

    Partner, Bracewell, specializing in white collar & financial fraud crimes – 2013 to present

    If I had filled out a dream sheet for who I wanted to review this material with an eye towards the bulk of it being admissible, I’d have ended up with her.

    The likelihood of Cohen flipping IMO just went up – dramatically …

  25. HarvardLaw92 says:

    @Todd:

    It’s twofold. While the 5th Amendment protections also apply to civil matters, the prohibition against the defendant’s choice to invoke being used against him/her do not necessarily apply as it would in a criminal matter. SCOTUS made that clear in Baxter v. Palmigiano back in 1976, specifically holding that:

    The Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them

    Beyond that, he also likely loses the ability to subsequently provide helpful testimony about the matters for which he invoked without risking a waiver of 5th Amendment protections. SCOTUS again, in Mitchell v. United States (1999):

    It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination.” …

    The justifications for the rule of waiver in the testimonial context are evident: A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry…. [A] contrary rule “would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony.” It would … “make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.”

    What he’s doing here makes sense, as it’s legitimately the only option open to him in light of the pending criminal matters he’s facing, but it also severely limits his ability to contest Ms. Daniels suit. The short version is that he is having to let her win here in order to avoid hanging his own ass somewhere else down the road.

  26. Mister Bluster says:

    The short version is that he is having to let her win here in order to avoid hanging his own ass somewhere else down the road.

    …in between The Devil and The Deep Blue Sea!