“Why Are Trump’s Lawyers Making These Jaw-Dropping Moves?”

Before he was president, before he was a reality TV star, Donald J. Trump was a businessman. At the very heart of his business model were lawyers and litigation. From the early days of the Trump Organization, he sued a lot of people over a whole lot of stuff, and he paid his lawyers as little as he could. He gave them 30 cents on the dollar, 20 cents on the dollar, or he’d tell them they were so lucky to have him as a client that they should be paying him. But beyond getting bilked, attorneys working for Trump have also found themselves in legal hot water. In the second installment of award-winning investigative journalist Andrea Bernstein’s special series for Amicus, “The Law According to Trump,” Andrea talked to Danya Perry—who represents Michael Cohen and is the founding partner of Perry Law. Their conversation has been edited and condensed for clarity.

Andrea Bernstein: What did you come to understand drew Michael Cohen to Donald Trump? 

Danya Perry: Trump enjoys a cult of personality, and he doesn’t care for pushback or feedback or kicking the tires or looking under the hood, whatever metaphor you want to use. It’s generally his way or the highway, and it’s really no different with his lawyers. Michael Cohen believes he was in a cult, that Trump is a charismatic leader, and that people really find that appealing. The people around him lived for his approval and dreaded his disapproval. Michael is a strong personality and had some business success himself. He kind of revered Trump. Before he started working for Trump, he read The Art of the Deal many times. So he was drawn to the celebrity and the lights and the power. Once he came on board, he was pulled in. And that is the kind of lawyer that Trump has attracted since the Roy Cohn days.

And Trump understands his effect on people, that they love him and want to please him and don’t want to cross him. 

Very much so. And he has enough lawyers and others that he can get rid of the people who don’t fall into lockstep. In 2017 he directed White House counsel to pressure his attorney general, Jeff Sessions, not to recuse himself from overseeing the Russia probe. When Don McGahn, who was counsel at the time, didn’t do that and Sessions ended up appointing special counsel Robert Mueller, Trump went bananas. He said, “Where’s my Roy Cohn?” That’s attorney Roy Cohn, who had been a legal aide to Sen. Joe McCarthy back in the day and then went on to be Trump’s personal lawyer and was later disbarred for severely unethical and unprofessional conduct. That is the mold of the Trump lawyer. Michael Cohen was in that mold from 2006 to 2018, when he was indicted.

Cohen is or was called Trump’s personal attorney, but a lot of what he did wasn’t really lawyering, right? 

Roy Cohn was a fixer, and that’s how Michael styled himself too. I looked at the work Michael did for Trump very closely because Trump brought a $500 million lawsuit against Michael, claiming he had breached various fiduciary duties that he owed Trump as a lawyer. But a lot of the work that Michael did for Trump couldn’t even really be called business stuff. It was consigliere stuff—definitely not legal, and some of it not lawful. And that’s why the crime-fraud exception has applied to Michael and to so many of Trump’s lawyers. It’s extralegal—it’s literally outside the law.

There was a theory that emerged, not long after Cohen’s home and office were searched by the FBI, that President Trump calling Cohen his personal attorney could cloak all their actions in privilege and thus immunize them from the prying eyes of investigators. Was that in fact what happened? 

That was the purpose. I think that’s why Trump has surrounded himself with so many lawyers. But I think he now sees that that hasn’t served him particularly well.

You mentioned the crime-fraud exception. Can you explain what that is? 

It was a common-law doctrine that has been codified by rules of evidence in our system of justice, brought over from the British system. There is a privilege between an attorney and her client, which is generally sacrosanct, meaning that law enforcement or a counterparty cannot pierce it and cannot generally gain access, through discovery or other means, to communications between a client and an attorney. But there is this exception—the crime-fraud exception—which does not allow this kind of veil of secrecy between lawyer and client, where the purpose of the communication is to seek advice for committing a crime or a fraud. And so that has to be litigated. If the judge finds, by a preponderance of the evidence, which is just more likely than not, that that was the purpose of the communication, then that communication is no longer secret, is no longer private, and can be turned over to the other side or to the government and can be used against that client. It’s hard to break that seal, but it certainly can be done, and we’ve seen it done in practice and in quite a few cases that Trump has been involved in.

I’m wondering if you can reflect on the arc of Michael Cohen’s experience, from lawyering for Trump to where he sits today?

Michael sometimes refers to it in Shakespearean terms. He had this blind devotion and loyalty to Trump and then was betrayed by Trump. And he had a choice. The inflection point came when Trump sent a lawyer in to represent Michael but who was acting in Trump’s interest and not in Michael’s. He wanted Michael to toe the line, to hold fast and metaphorically take the bullet for Trump.

Michael decided that he wasn’t going to put his family in harm’s way. He wasn’t going to sacrifice his loyalty to them in favor of his loyalty to Trump. And so he flipped. And ever since, he’s been doing penance. The name of his podcast is Mea Culpa. He has accepted responsibility, and he now sees it, in very stark terms, for what he says it always was—that Trump, in his characterization, never has loyalty to anyone other than himself and his own interests. There are people in Trump’s administration who parted ways with him, many of them over Jan. 6, who then were thrown under the bus. There are quite a few examples of it now, but none, I think, sharper than the experience Cohen had.