Wednesday’s widespread reporting that President Donald Trump’s longtime lawyer Michael Cohen was breaking up with his legal team brought the latest wave of attention to the criminal investigation he is at the center of in the Southern District of New York.
Experts who spoke with Business Insider explained what rationale could be behind the surprise parting of ways, and if the split means it is more likely Cohen will soon agree to cooperate with prosecutors.
Earlier in the day, multiple reports said Cohen’s lawyers were set to stop representing him in the case. Sources told ABC News that this change made it likely that Cohen would cooperate with federal prosecutors in Manhattan, where he is under criminal investigation for possible campaign-finance violations, bank fraud, and wire fraud following the FBI’s raids on his home, office, and hotel room in April.
Attorneys Stephen Ryan, Joseph Evans, and Todd Harrison have represented Cohen in the investigation, which has so far featured several hearings before US District Judge Kimba Wood related to the documents seized by the FBI. The attorneys had not yet filed to Wood a notice to withdraw from the case.
The New York Times reported that Cohen’s legal team is expected to stay with him until the end of the week as they race to finish reviewing the vast array of documents, a trove of which still had to be reviewed for privilege designations. In a late May hearing, Wood ordered Cohen’s team to complete that review by Friday. The Times reported that once the review is complete, Cohen will seek new counsel.
The Wall Street Journal reported that Cohen is seeking a lawyer with close ties to the US Attorney’s Office for the Southern District of New York. Meanwhile, multiple reports said Cohen had not yet decided whether to cooperate with prosecutors, and had not met with prosecutors in hopes of cutting a deal.
“Anybody can make a deal, I don’t know why he would have to change lawyers for that purpose,” Roland Riopelle, a partner at Sercarz & Riopelle and formerly a federal prosecutor in the Southern District of New York, told Business Insider, adding that “it’s not uncommon at all for someone to get halfway through the process and say, ‘You know what, I can’t keep doing this. I’ve got to plead guilty and cooperate and all that.” You don’t need a new lawyer for that. So that’s curious to me, frankly.”
More likely than not, Riopelle said the decision was likely related to money. McDermott, Will, and Emery, the firm where Ryan, Evans, and Harrison work, is what Riopelle described as “a gigantic firm where they bill premium rates.”
“And it could simply mean that Michael Cohen thinks he’s going to bankrupted by this law firm before he gets to the end,” Riopelle continued. “And so he wants to make a change.”
Both The Times and Vanity Fair seemed to confirm Riopelle’s belief, reporting that the main issue between Cohen and his lawyers was over payment of his bills. Vanity Fair reported there was also a dispute over how much the Trump Organization would foot on Cohen’s behalf.
‘It certainly could signal an attempt to make a friendly deal with the prosecutor’
Harvard law professor Alan Dershowitz, meanwhile, told Business Insider it appears likely that Cohen is seeking an attorney who specializes in dealmaking after reportedly separating from his existing legal team.
“It certainly could signal an attempt to make a friendly deal with the prosecutor,” Dershowitz said, who noted that “the key is to find out who the new lawyer is.”
Dershowitz made reference to certain New York attorneys that he refers to broadly as “prosecutors in defense attorney’s clothing,” explaining that such lawyers do “nothing but make deals with the US attorney’s office.”
“They are often recommended by the US attorneys office to clients who want to make a deal,” he said. “They’re not real defense attorneys, they never go to court. They just are dealmakers. And sometimes, the US attorney’s office will recommend an attorney like that without telling the client that they’re in bed with the prosecutor, but I don’t think that’s the case here.”
Dershowitz said that until it’s known who Cohen’s new lawyer is, “we won’t have a sense of what is going on.”
Cohen would want a lawyer who has experience working with the Southern District regardless of whether he wants to make a deal or push forward in a potential trial, Dershowitz said.
“But certainly if you’re trying to make a deal, you’re much better off having a lawyer who is on much better terms with the US attorney’s office,” he said.
Jed Shugerman, a Fordham University law professor, told Business Insider that the discussion surrounding Cohen on Wednesday left out “one dynamic” he thought could be at play.
“Maybe Cohen has indicated a willingness to cooperate, but because SDNY hasn’t seen the documents from search, they don’t want to offer a deal yet,” he said. “Why offer deal to prove X if documents prove X? Demand Cohen give up X, Y, and Z for any deal.”
Those documents are the focus of Cohen’s case at the moment. In April, Cohen and his lawyers successfully argued to have a special master appointed, which allowed them, Trump’s attorneys, and the Trump Organization to make determinations over which documents were protected by attorney-client privilege and could not be used in a potential prosecution.
The special master, Barbara Jones, was appointed to oversee the review and determine which documents she believed were privileged. Last week, Jones reported that she had completed the review of the first 300,000 documents, determining that just 162 were privileged. She disagreed with Cohen, Trump, and the Trump Organization on just three documents.
The ‘natural time to make the switch’
If Cohen’s team can’t finish reviewing the remaining documents to make privilege designations by Friday, Wood might turn the rest over to a “taint team” of government prosecutors to finish the review, she said. That team would be walled off from those who might prosecute Cohen. It’s the option Cohen and Trump didn’t want to have happen.
Steven Feldman, a former assistant US attorney for the Southern District of New York who now works as a defense attorney at Murphy & McGonigle, told Business Insider that now is actually the “natural time to make the switch” if Cohen wants new counsel.
“The document review controversy is a distinct phase of the investigation,” he said. “Following the document review process, the investigation will likely enter into other phases, including possible arrest and indictment.”
At the center of Cohen’s troubles is a $130,000 hush-money payment that he facilitated to porn star Stormy Daniels, whose real name is Stephanie Clifford, just weeks before the 2016 presidential election to keep her quiet about her allegation of a 2006 affair with Trump. the FBI sought documents related to that payment and other similar agreements with women during the April raids.
Michael Avenatti, the attorney for Daniels, told Business Insider that the reported “abandonment” of Cohen by his attorneys “is an unmitigated disaster for” Trump and his longtime lawyer.
“I think the likelihood of Mr. Cohen immediately flipping on the president just went through the roof,” Avenatti said. “Our case gets better every day.”