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Trump's lawyer Michael Cohen faces the real price of client loyalty

Trump's lawyer Michael Cohen faces the real price of client loyalty
  • Trump's lawyer Michael Cohen is under investigation by the FBI in connection with hush money paid to women who claim they had affairs with President Donald Trump.

  • Trump demands loyalty from his associates, but Cohen's loyalty to his client may have gone too far.

  • Now that he is himself in the clutches of the law, it remains to be seen if his loyalty will continue or if he will bite the hand that has fed him.

  • Meanwhile, look no further than Robert Mueller, for an exemplary example of loyalty - to the law itself.

The Bible tells us that the price of loyalty can be high – "There is no greater love than to lay down one's life for one's friend" (John 15:13) – a phenomenon we see as attorney Michael Cohen appears to have laid down his professional life for Donald Trump in his handling of the Stormy Daniels affair (pun intended).

Before we beatify Mr. Cohen, though, we may want to take a closer look at the fuzzy distinction between a lawyer's noble loyalty to a client and their improper loyalty. Nearly two hundred years ago in another sensational case of alleged adultery in which Queen Caroline stood accused by King George IV, Caroline's attorney Lord Brougham rendered a classic description of the price that can be paid as a lawyer fulfills his or her duty of "zealous representation":

[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; . . . Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.

So, in involving his own country in confusion via his payment of $130,000 in hush money, his tale of keeping it a secret to insulate the President, and his possible disbarment for doing so, hasn't Cohen followed Lord Brougham's prescription of singular loyalty to his client and, while we're at it, the biblical description of a loving friend?

Hardly. There's nothing selfless about the payment or the claim he never disclosed it to the president. Indeed, according to many who know him, there may not be a selfless bone in his body.

Even if it turns out that the payment was permanently slated to come out of Cohen's own pocket, it most likely represents an investment in his immediate future as a close ally of the man who stood days away from the presidency and also as a means of protecting and expanding his own set of Russian real estate deals.

What's more, entering into an agreement on behalf of a client without disclosing it to the client violates the code of attorney conduct.

As if to prove that his loyalty runs straight to himself, in his first public statement following the FBI's collection of his files, Cohen abandoned his tough-guy persona and praised the Bureau for the politeness of its raiders.

The feeling one gets is that they must have the goods on him and he calculates that his best bet now is to cooperate with the investigation, which would make him Mueller's biggest catch to date and help explain the president's sky-high anxiety over the raid.

Weighing against the decision to cooperate is the prospect that, should Cohen be successfully prosecuted for this or that, he'll ultimately be pardoned by the President, and that, by talking nicely about the Bureau and exacerbating the president's concern that Cohen will flip, Trump will be pushed over the line, fire Mueller, and everyone now under suspicion will live happily ever after.

Anyway, so much for noble loyalty.

By contrast, the price of Brougham's loyalty – to the country and, in addition, to himself in provoking the King's wrath – was born of his admirable loyalty to the principle of due process for his client and his willingness to sacrifice for it.

And if you'd prefer a more contemporary version of the price of noble fidelity to the interests of those one represents, look no farther than the lawyer who's holding the president and his cronies' feet to the fire as he himself endures ruthless, partisan condemnation and faces imminent, unceremonious dismissal: Robert Swan Mueller III.

We don't have to like the outcome of a case – think here O.J. Simpson or Casey Anthony – to appreciate that counsel's noble loyalty to her or his client is what stands between us and the many systems in which basic legal rights exist only on paper.

It's a lesson passed on to us as kids when we learned that John Adams, widely vilified at the time for his tenacious and largely successful representation of the eight Redcoats who fatally shot colonists in the Boston Massacre, represents a symbol of the rule of law.

Mueller's career teaches another lesson in faithfulness to the process: fidelity to principle is not an act that one performs on a particular occasion. It is, instead, a quality that is demonstrated over time – and which, over the course of his investigation, demonstrates the old adage that "no good deed goes unpunished."

It is true that, in the end, both Michael Cohen and Robert Mueller are paying high prices for their contrasting forms of client loyalty. Mr. Cohen, though, has suffered an additional and substantial loss: that of the ability to be proud of who he sees in the mirror each morning.

Commentary by Jay Sterling Silver, a law professor at St. Thomas University School of Law.

For more insight from CNBC contributors, follow @CNBCopinion on Twitter.



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