Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and of counsel to the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are those of the author. View more opinion articles on CNN.
The news that the President’s personal counsel, Michael Cohen, had secretly recorded conversations with his famous client was shocking to a lot of people – and particularly to his former client. President Donald Trump professed Cohen’s actions to be “inconceivable … unheard of & perhaps illegal.” This was a harsh description of Cohen, whom Trump had previously described as a “good man,” shortly after the FBI raided the lawyer’s home and office to execute a search warrant as part of what Trump calls a “Witch Hunt.”
But as Cohen’s story takes the spotlight again, he has the potential to rise from the ashes of his shattered reputation and have his own “John Dean” moment. Dean’s story, as counsel to Richard Nixon during the Watergate scandal, was a political tale of disgrace and then redemption as Dean turned “state’s evidence” against a corrupt but powerful President.
Lacking Dean’s resume and poise, the rough-edged Cohen can only pull off a Dean story if he has incriminating information in his “fixer” files sufficient to force the resignation or impeachment of a President who seems impervious to scandal.
Though only in his mid-30s at the time, the young Dean held an impressive array of congressional and Justice Department posts before his appointment in 1970 as counsel to the President. By all accounts, Dean was a central figure in orchestrating the Watergate coverup. At one point, the FBI described Dean as the “master manipulator” of the coverup.
Later, however, Dean became a national hero of sorts when he cooperated with federal prosecutors and congressional investigators in building a case against Nixon. His testimony before the Senate Watergate Committee, chaired by a folksy, self-described “country lawyer” named Sam Ervin, D-North Carolina, gripped the nation and struck fear in Nixon aides who had attempted to blame the whole scandal on Dean.
Whether he would be believed, though, when contradicted by Nixon and his aides remained an open question – until a largely unknown presidential aide, Alexander Butterfield, revealed the existence of a White House taping system, which had recorded virtually all important Oval Office meetings, including those related to the coverup.
The tapes confirmed Dean’s testimony and doomed Nixon, his top aides and Attorney General John Mitchell. The deal that Dean cut with Watergate prosecutors included a felony plea, but he served only four months in custody at a federal “safe house,” which mostly consisted of lengthy conferences with prosecutors, FBI agents and investigators preparing for trials and the possible impeachment of Nixon. He was disbarred as an attorney but would later achieve success as an investment banker, author, lecturer and currently as a CNN contributor.
Like Dean, Cohen may also face disciplinary action from bar authorities – though for a different offense. Dean’s felony conviction led to his disbarment, while in Cohen’s case, his disciplinary offense may be the potentially unethical recording of client conversations. More serious charges relating to his law license would follow if he is convicted of a serious crime, though none are currently lodged.
The signs of a possible Cohen indictment are ominous. He has hired a new trial-ready attorney, and a Southern District Grand Jury was reportedly empaneled to investigate his case. All signs are that he is shopping for a deal, and people don’t need a deal unless they fear indictment.
And the attorney-client privilege may not shield the President from the files, records or even tape recordings of his personal attorney. A federal judge concluded that only a tiny fraction of the material seized fell within the ambit of the attorney-client privilege. The rest of the material was presumably business related or personal in nature. A client’s deepest, darkest secrets – including even confessions of criminal conduct – are protected by the privilege only if revealed to an attorney in his role as an attorney. In other words, Trump’s disclosures to Cohen are protected only if they were “of or concerning” legal matters.
But like everything in the law, there are exceptions to the rule. One which could rear its head in the Cohen situation is the “crime-fraud” exception. In other words, if Cohen was rendering advice to the President about how to structure “hush money” payments in violation of federal election laws, such conversations would not be protected from disclosure. The law will not shield disclosure of an attorney-client conversation relating to the planning or commission of future crimes.
Even if the recordings do not reveal the planning of a future crime, their legality and admissibility could depend upon where the recordings were made. Some states require the assent of both parties to a recording, while others only require one. New York is a one-party state, meaning Cohen’s consent alone may have rendered recording legal. Trump’s location in another state would probably be unlikely to alter this analysis, as the party making the recording, Cohen, was located in a state where the action was legal. Though there may be some debate about this in legal circles, it is likely that the law in the jurisdiction where the recording was made, in this case New York, will govern.
The prospect of Cohen’s transformation into a historic figure of John Dean’s importance, however, suffers from one potentially fatal obstacle. Dean’s testimony related directly to Nixon’s criminality in his role as President, while most of Cohen’s tapes will undoubtedly pertain to Trump’s activities prior to being sworn in as President. Cohen never had a job in the Trump administration. Under the circumstances, the President may survive the Cohen tapes, and history will view Cohen as “John Dean Lite.”