President Donald Trump offered a simple defense Thursday to accusations he broke campaign finance law by directing attorney Michael Cohen to orchestrate hush-money payments to conceal Trump’s alleged affairs: He was following terrible advice from a bad lawyer.
“I never directed Michael Cohen to break the law. He was a lawyer and he is supposed to know the law. It is called ‘advice of counsel,'” Trump wrote on Twitter.
The advice-of-counsel defense is a real thing. But Trump’s ability to use it, if he were ever formally accused of a crime, is far from certain. And it could be risky.
“People talk about advice-of-counsel as a defense more than it’s actually asserted, and it’s rarely successful,” said Dane Ciolino, a constitutional law professor at Loyola University in New Orleans.
Courts have held that the defense applies when a person has gone to a lawyer to ask about whether something is legal, disclosed all material facts, and then relied in good faith on the professional’s advice that no laws were being broken.
The illegal act in this case involves payments made to porn star Stormy Daniels and Playboy centerfold Karen McDougal to keep them from talking about sexual encounters they say they had with Trump while he was married.
Federal prosecutors in New York say the payments amounted to illegal campaign contributions because they were made at the height of the 2016 election season to keep voters from learning of Trump’s alleged infidelities. Cohen was sentenced Wednesday to three years in prison for the violations and other crimes, including bank fraud and tax evasion.
Cohen has said that Trump was aware of the payments. In one instance, he recorded Trump giving him advice about how to buy McDougal’s story from the parent company of the National Enquirer. It isn’t clear from that recording, or other evidence made public, whether Trump and Cohen ever specifically discussed whether the payments were legal. Cohen and prosecutors say the Trump Organization reimbursed Cohen for a $130,000 payment to Daniels.
Cohen, Trump and David Pecker, the chairman of the company that owns the National Enquirer, had a meeting at Trump Tower in August of 2015 to discuss ways the media company could help the campaign, including buying the silence of women who might talk publicly about affairs with Trump, according to documents made public by federal prosecutors.
Trump has not specified what advice, if any, he received from Cohen. In an interview Thursday with Fox News, he said: “I never directed him to do anything wrong. Whatever he did he did on his own. A lawyer who represents a client is supposed to do the right thing.”
An advice-of-counsel defense is “not easily invoked and has far-ranging consequences and risks,” said Tony Alexis, a former federal prosecutor who worked in the Justice Department’s fraud and public corruption section.
For one thing, a person who invokes the advice-of-counsel defense can no longer claim attorney-client privilege, meaning his or her conversations with the attorney are no longer private and can be freely explored by prosecutors.
“It’s a very risky strategy,” said Jennifer Rodgers, a former federal prosecutor in Manhattan.
In this case, it could give investigators access to records and communications between Trump and Cohen that were deemed confidential after the FBI raided Cohen’s office earlier this year, Rodgers said.
“He’d be waiving privilege with respect to everything,” she added.
While uncommon, the defense has had high-profile successes.
Manhattan District Attorney Cyrus Vance said last year he would not pursue state election law charges against New York Mayor Bill de Blasio in part because the parties involved in making legally questionable transfers of campaign funds relied on the advice of their attorneys.
In the president’s case, Rodgers said, Trump would have to establish that he was actually seeking Cohen’s legal advice in connection with the hush-money payments and not relying on him to handle the matter as his long-time fixer.
The advice-of-counsel defense is “for a client who says, ‘I want to make sure I’m in compliance with the law here,'” Rodgers said.
Trump has not been charged with a crime, and it remains unclear whether the U.S. Justice Department, under its own protocol, could even bring a case against a sitting president.