Cohen testified that while in a meeting with Donald Trump and with Trump’s lawyers, Jay Sekulow & Abbe Lowell, Jay Sekulow edited Cohen’s statement to Congress on the timing of Moscow Tower.
Crime Fraud Exception rule to Attorney/Client Privilege
Originally Cohen testified the Moscow Tower deal ended in “January 2016.” If Jay Sekulow edited Cohen’s remarks to conceal evidence, suborn perjury, and falsely shorten the duration of the negotiations on the Trump Moscow project; then there is probably no attorney/client privilege and Sekulow may become a witness and possibly investigated for suborning perjury, concealing evidence, etc.
If the crime-fraud exception applies, then the prosecution can subpoena Jay Sekulow and Abbe Lowell (and whoever else was in the meeting) and
- force them to disclose the contents of the communications in that meeting and
- force them to answer questions they had with Donald Trump regarding Trump telling them to review and edit Cohen’s remarks to conceal evidence from Congress.
Mandatory Disclosure
In some situations lawyers are ethically required to disclose some communications and if the lawyer doesn’t, they risk disciplinary sanctions, and possibly criminal charges. Example are:
- Perjury. If the attorney knows a witness is about to give, or has given, perjured testimony then the lawyer must inform the Court (or Congress in this situation).
- Crucial evidence. If a witness gives the attorney a crucial piece of evidence, the attorney may have to disclose that to the Court (or Congress).
Rule 34 (From American Bar Association)
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
Cohen’s partial testimony
COHEN: Mr. Trump’s personal lawyers reviewed and edited my statement to Congress about the timing of the Moscow Tower negotiations before I gave it.
REP. RASKIN: So this is a pretty breathtaking claim, and I just want to get to the facts here. Which specific lawyers reviewed and edited your statement to Congress on the Moscow tower negotiations, and did they make any changes to your statement?
COHEN: There were changes made, additions. Jay Sekulow for one
REP. RASKIN: Were there questions about the timing?
COHEN: There were several changes that were made, including how we were going to handle that message. Which was — the message, of course, being the length of time that the Trump Tower Moscow project stayed and remained alive.
REP. RASKIN: That was one of the changes?
COHEN: Yes.
It’s nothing new and not a crime for lawyer to edit their client’s documents or testimony so long as they do not edit the testimony in an effort to conceal evidence or to suborn perjury. And since Cohen had a joint agreement with Trump’s lawyer’s, Jay Sekulow had a right to edit testimony so long as it didn’t conceal evidence or suborn perjury.
But that’s the question: Did Jay Sekulow edit the date to conceal evidence and suborn perjury (or “stay on message” as Cohen calls it) at the direction of Donald Trump?
Cohen went on to testify that Sekulow’s “goal” in editing his testimony was to “stay on message" which is the message Trump approves, directs, and wants put out there.
REP SARBANES: Did you have a reaction to why there might not have been, in a sense, a protest to what was going to be false testimony that was going to be provided to the Intelligence Committee?
COHEN: No, sir, because the goal was to stay on message: It’s just limit the relationship whatsoever with Russia. It was short. There’s no Russian contacts. There’s no Russian collusion. There’s no Russian deals. That’s the message. That’s the message that existed well before my need to come and testify.
If Jay Sekulow and Abbe Lowell intentionally concealed evidence to “stay on message” and downplay the significance of the Moscow Russia deal, then it’s important to know why Sekulow or Lowell would have made that change and at whose direction.
Interestingly enough, Jay Sekulow is denying that he edited the timing of the Trump Moscow deal in Cohen’s testimony. Even though, Cohen testified Sekulow did edit the timing.
COHEN: Mr. Trump’s personal lawyers reviewed and edited my statement to Congress about the timing of the Moscow Tower negotiations before I gave it.
Hmmmmm …. in the first place, Cohen was not going risk more prison time by lying to Congress again so I feel Cohen was truthful yesterday. Secondly, If Cohen was truthful, then that means Jay Sekulow did change and edit Cohen’s testimony. And that would mean Jay Sekulow is lying when he says he did not edit the timing of the Trump Moscow deal in Cohen’s testimony.
No doubt both Jay Sekulow and Cohen are pathological liars, just like Trump. But given the fact that Cohen risked more prison time if he lied yesterday while Sekulow risked nothing if lied to the press, again, I feel Cohen was telling the truth under oath and Sekulow is lying in his denials to the media about editing Cohen’s testimony.
If Sekulow made the change and suborned perjury at the direction of Trump then Sekulow may have committed a crime and Trump may have, once again, obstructed justice.
Here’s my advice to Jay Sekulow and Abbe Lowell: If you’re lying, concealing evidence, and suborning perjury for Donald Trump; then you may end up disbarred and in prison like Trump’s former lawyer, Michael Cohen.