By KENNETH DEL VECCHIO
A legal analyst for CNN, Jeffrey Toobin, proclaimed that the $130,000 payment made by attorney Michael Cohen to porn star Stormy Daniels was unethical. The apparent basis for this declaration is rooted in a theory that Cohen, as a lawyer, should not have made a personal payment on behalf of his client, Donald Trump – without Trump’s knowledge.
Of course, there is no ethical rule that would prohibit this type of conduct and, thus, the same is probably the reason why Toobin failed to cite one. Cohen’s transaction could only rise to an ethical violation if either (1) the client (Trump) had forbidden the payment prior to it being made; or (2) Trump issued a complaint about the payment after its delivery. If Trump was pleased with the payment, the altruistic, private act of Cohen (who happens to be a lawyer by trade) is ethically permissible.
The claim of a specious ethical violation not being enough for Toobin, he sputtered on that Cohen’s $130,000 payoff to Daniels does not make any sense. He stated that lawyers do not do such things for clients.
Toobin must have missed the loyalty class in law school. Or, perhaps, in life.
Cohen is not only a personal lawyer for Trump. He is also the Executive Vice President for the Trump Organization. More so, the men are close personal friends.
In layman’s, regular speak, it makes a lot of sense that Cohen made this payment to the frequently-nude performer. The attorney/man/friend made it out of loyalty.
Toobin et al apparently never watched the Leonardo DiCaprio film, The Aviator. In this Oscar winning flick, the famous/infamous billionaire Howard Hughes, played by DiCaprio, meets with a sleazy tabloid publisher (Willem Dafoe) in a parking lot. The reason for the rendezvous? Dafoe’s character has obtained sexploitation photos of Hughes’s ex-fiancée, legendary movie star Katherine Hepburn (Cate Blanchett), with her new lover, Spencer Tracey.
The publisher is prepared to go to print with the photos and a corresponding story about the actors’ torrid love affair, which would have been a catastrophe in 1940s Hollywood, given the fact that Tracey was married. What did Hughes do? Without Hepburn’s knowledge or consent, he paid off the publisher (with a whopping stock dividend) in exchange for his agreement to kill the story and photo publication.
Hughes’s act, for a past paramour no less, was done out of loyalty.
Loyalty that no one complained about.
Loyalty that no one in the media would condemn.
Loyalty that no one in the legal bar then – or now – would claim to be an ethical miscue. Or a campaign finance violation, which many uninformed or legally-inept pundits are decrying.
The hypothesis that Cohen’s act amounted to an ethical violation is an unsupported legal stretch. The notion that it breached campaign finance laws is patently absurd. In order to prove that this monetary payment was such a lawbreaker, the following would need to be shown: (1) that the monies were actually a contribution to Trump’s presidential campaign; (2) paid, with the purpose, to further his presidential campaign; and (3) which were not reported to the FEC (the body that governs federal campaign contributions and spending).
The chance of proving this is the null set, unless there was a smoking gun (e.g. – Cohen on video saying that he made the payment as a campaign contribution). It is akin to impossible to prove, by any legal burden of proof, that Cohen’s purpose in making this payment was to benefit the campaign and not the man. The timing of the payment (that it was weeks before the election) means nothing, under the law, with regard to it being characterized as a campaign contribution. Even if Cohen hoped, which is logical, that the quieting of Daniels’s unfounded claims of a sexual relationship would be beneficial to Trump’s presidential aspirations, the same doesn’t render his payment a campaign contribution. It’s simply an ancillary result of the deal, which, no doubt, benefitted the man Donald Trump. Trying to get into Cohen’s head – and define his purpose – is legal lunacy in this matter.
In fairness (being generous with that term here) to Toobin, Mark Geragos, a well-known California attorney, seemed to support Toobin’s ethical-flap assessment, during an appearance on “Anderson Cooper 360.” Other lawyers have also incorrectly rendered this conclusion including, of course, Michael Avenatti, Daniels’s attorney, who slobbered at the mouth in the same Cooper segment.
Cooper, who was engaged in an all-out-witch-hunt-assault against Cohen and Trump in this program, bilked every possible silly theory of crime/violation/misconduct out of Avenatti during his 15 minutes of CNN fame. The most ludicrous was the proposition that Cohen may be guilty of a misdemeanor, under California law, for appearing in an arbitration proceeding in that state. The irrationale (that’s a new word specially created for this circumstance) behind Avenatti’s argument is that Cohen, although an attorney, is not licensed in California. And, therefore, his “unlicensed” representation at the arbitration proceeding constitutes a violation of the state’s criminal code.
Avenatti, of course, does not definitively know of Cohen’s California license status. That aside, the criminal statute is designed to prohibit the practice of law by non-attorneys (not attorneys who are bar members in other states) who dupe unwitting clients and courts into believing that they are lawyers. More so, while it would be an ethical violation for an out-of-state lawyer to engage in trial work, such is only true if the attorney did not file a pro hac vice application – paperwork, sponsored by an in-state lawyer, that permits the out-of-state attorney to practice in that state’s courts for a particular case. While it is unknown, at this time, if Cohen filed the requisite application, the matter is further complicated (for Avenatti and his ridiculous claim) given that only certain litigation appearances require pro hac vice applications; most legal representation, such as transactional work, is not subject to this requirement. It is speculative whether this arbitration “hearing” would even necessitate the application.
In any case, under no circumstance, is Cohen guilty of a misdemeanor for his arbitration dealings in California. Avenatti, however, may want to be guided by an old legal maximum: “you can’t threaten criminal prosecution to get ahead in a civil case.” The same is tantamount to extortion – and that is a crime under every state’s laws. While Avenatti likely has not committed this offense nor violated the maxim, he sure is flirting with breaching the spirit of it.
And one question: is anyone wondering with what method the porn star, Daniels, is paying Avenatti? Well, who wants to come up with a proposition for that?
Kenneth Del Vecchio is the author of some of the nation’s best-selling legal books, including a series of criminal codebooks published by Pearson Education/Prentice Hall and ALM/New Jersey & New York Law Journal Books. He is a former judge, a former prosecutor and a practicing criminal/entertainment attorney for 23 years, wherein he has tried over 400 cases. Mr. Del Vecchio is also an acclaimed filmmaker who has written, produced and directed over 30 movies that star 100+ film and TV stars, including several Academy Award and Emmy winners and nominees. His films are distributed through industry leaders such as Sony Pictures, NBCUniversal, Cinedigm, and E-1 Entertainment. He has starred in numerous movies, as well. A best-selling political thriller novelist, he penned his first published novel at only 24-years-old. Additionally, Mr. Del Vecchio is the founder and chairman of Hoboken International Film Festival, called by FOX, Time Warner, and other major media “One of the 10 Biggest Film Festivals in the World.” A frequent legal and political analyst on networks such as Fox News Channel, Mr. Del Vecchio formerly served as the publisher and editorial page editor for a New Jersey daily newspaper.
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