Sean Hannity: Schrodinger’s Client

Sean Hannity: Schrodinger’s Client April 18, 2018

I am greatly amused watching Sean Hannity flounder around to explain how is both a client of Michael Cohen’s, and thus retains the attorney-client privilege for any communications between them, and not a client of Cohen’s because he doesn’t want to be associated with the scandals or potential criminal charges that the Trump fixer is involved with. Call him Schrodinger’s client.

Let’s start with how his involvement became a matter before Judge Kimba Wood as she considers motions regarding the search warrant used to seize records from Cohen’s office and home. In order to distinguish what communications are genuinely a matter of privilege and relevant to the case, Judge Wood asked for a list of clients that Cohen has had in the last couple years. Turns out there were only three of them — Trump, Elliott Broidy (both involving payoffs to women they had affairs with), and a third client, unnamed and insisting on anonymity. Trump’s attorney in the matter, Stephen Ryan, said that the third client wished to remain anonymous and argued that Cohen had an ethical duty not to reveal that person’s identity without their permission, even to a federal judge.

In a letter to the court, Cohen’s attorney said that the three clients, including the anonymous one that we now know was Sean Hannity, were clients on whose behalf Cohen had given “direct legal advice or dispute resolution–more traditional legal tasks.” Furthermore, he said, “All of these clients are individuals. One of these legal clients is Donald J. Trump. Another legal client is [Elliott] Broidy. The third legal client directed Mr. Cohen to not to reveal the identity publicly.” So in a direct representation to the court, Cohen’s attorney said that Hannity was a client for whom Cohen had performed “traditional legal tasks.” Thus, attorney-client privilege applies to all three.

When Judge Wood ordered Ryan to reveal the name of the third client and he spoke Hannity’s name out loud, Hannity quickly went into damage control mode. Not wanting to be associated with the case or the scandals engulfing Cohen, he tried to then claim that he wasn’t really a client of Cohen’s. “Michael Cohen has never represented me in any matter,” he said on Twitter. “I never retained him, received an invoice, or paid legal fees. I have occasionally had brief discussions with him about legal questions about which I wanted his input and perspective. I assumed those conversations were confidential, but to be absolutely clear they never involved any matter between me and a third-party.”

But here’s the problem: You’re either a client or you’re not. If you’re a client, you get the benefit of the attorney-client privilege; if you’re not, you don’t. So while Ryan was arguing in court that Hannity was one of Cohen’s clients, and that the attorney-client privilege was such a solemn obligation that Cohen had an ethical duty to not even reveal that he was a client at all, much less any communications they had, Hannity was undermining that argument on Twitter. His need to make a political argument to rescue him from ethics problems undermined the legal argument being made on his behalf.

Here’s one obvious question: Why was Trump’s lawyer the one making these arguments? It wasn’t even Cohen’s lawyer, it was Trump’s lawyer. What interest would Trump have in keeping Hannity’s name out of the media in regard to this case? We can only speculate, of course, but I suspect a lot more will come out on this.

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