The First Rule of Trump Litigation is that EVERYONE IS LYING all the time. For instance, Rudy Giuliani will happily feed the New York Times a story about the "exculpatory" tapes of Donald Trump and Michael Cohen coordinating the Playmate Peener Payoff for Karen McDougal's story. See, Michael Cohen wanted to pay cash, and Donald Trump insisted that they cut a check for accounting purposes. And the law says there's no campaign finance violation if you pay by check! (No he didn't. No it doesn't. And if the Trump Organization cut the check, it would likely be an illegal campaign donation anyway.)

Which brings us to the Second Rule of Trump Litigation: EVERYONE IS HILARIOUSLY INCOMPETENT. From Ty Cobb getting baited with a prankster's hairy nutsack, to Michael Cohen depositing all of his "consulting" money from corporations trying to influence the Trump administration in the same account he used for the Stormy Daniels payoff, it's been quite a ride.

With everything cloaked in a cloud of derp, there seems to be some confusion about the dozen recordings seized by the FBI when they raided Michael Cohen's home and office. CNN reports that Trump's lawyers waived attorney-client privilege for the tapes, allowing them to be accessed by the SDNY prosecutors. Assuming that's correct, is this some superlawyer ninja jujitsu move by Rudy Giuliani "to undercut Cohen, who could have potentially used the exclusive possession of the material as a bargaining chip to cut a deal with prosecutors," as Emily Jane Fox suggested in Vanity Fair?

Uhhh, we're not 100% sure we agree with your police work there, Fox. For one thing, the client owns the privilege -- the attorney can't use privileged material as a "bargaining chip" with prosecutors. Moreover, threatening to release privileged material unless Trump pardons him/pays his legal fees/fires the prosecutor is blackmail. And Michael Cohen is A IDIOT, but we're pretty sure his attorneys are smart enough not to openly blackmail a sitting president.

Although we are very POPCORN GIF!!! for this exciting tidbit from Fox's piece.

Despite the tape's release, however, people familiar with Cohen's thinking are confident that his value as a potential cooperating witness is undiminished. "It's not the recording that is valuable," one person said. "It's the backstory." Another person close to Cohen said that he was privy to information that could be valuable to special counsel Robert Mueller's investigation into Russia's attempt to interfere in the 2016 election. "When Michael says that he wants the truth out there, and that the truth is not the president's friend, he is not talking about marginal issues. He's talking about core issues at the heart of the Mueller probe," this person continued. Three people familiar with the situation believe that Cohen has discussed information about the June 2016 meeting in Trump Tower, during which Don Jr., Kushner, and Paul Manafort met with a Russian lawyer with ties to the Kremlin who promised to provide them with "dirt" on Hillary Clinton. (Cohen declined to comment.)

We asked our supersecret criminal defense source, and he suggested Trump's legal team realized that they'd lose a fight over privilege -- because of the crime-fraud exception, or because the interaction didn't involve legal work, or because there was another party present for the conversation -- and so they waived privilege rather than fight about it.

What likely happened is when they saw the inventory of discovery and noted taped conversations they immediately claimed privilege, then they heard them, did a little [thinking] and realized they were likely to lose and opted to surrender rather than have a hearing and get croaked, putting them in an even worse position.

Makes sense to us!

But who leaked the video to the New York Times? Michael Avenatti says it was Cohen firing a "shot across the bow" at Trump.

And Rachel Maddow's source says it was definitely NOT Cohen, so it must be Trump's team trying to get out in front of this by leaking it before Cohen can.

UH HUH. We're going to refer back to the First Rule of Trump Litigation here. If Michael Cohen and Rudy Giuliani tell you it's Tuesday, seek a second opinion. If we had to guess, we'd say it was Team Trump trying to get out in front of this story, since for once they're not flinging poo and howling about LEAKSSSSSSS!!!! Giuliani was ready from the jump with his #HotTake on the "powerful exculpatory evidence."

Seems like a stupid strategy to us, but see the Second Rule of Trump Litigation. Because if you have a problem, Rudy can always, always, always make it worse!

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[NYT / Vanity Fair / WaPo]

Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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