Legal Analysis

Sean Hannity Can Try to Fight a Subpoena, But He Likely Gave Up His Best Defense Already

Fox News host Sean Hannity‘s interview with President Donald Trump on Thursday had a lot of people talking. A bunch of those people were lawyers, and much of their discussion had to do with Hannity possibly revealing a little too much and opening himself up to a congressional subpoena.

The relevant part of the interview dealt with Trump’s former attorney Michael Cohen, who testified before congressional committees earlier in the week. One of the topics Cohen discussed was his and Trump’s roles in hush payments made to women who claimed to have had affairs with Trump. Cohen was sentenced to three years in prison for crimes that included his arrangement of these payments to adult film star Stormy Daniels and former Playboy model Karen McDougal. Cohen said that Trump directed him to make those payments.

Hannity told Trump and his audience that Cohen gave him very different information in the past.

“I can tell you personally, he said to me at least a dozen times, that he made the decision on the payments and he didn’t tell you,” Hannity told Trump on the air.

This admission that he’s had “at least a dozen” conversations with Cohen about this subject, and that those conversations included information contrary to what Cohen told lawmakers under oath, should be of high interest to the congressional committees who questioned Cohen. Not only that, federal prosecutors with the Southern District of New York (SDNY) who brought the case against Cohen would also likely want to learn more.

As Rep. David Cicilline (D-RI) noted, Hannity might as well have offered then and there to go before Congress.

Cicilline wasnt the only one to say this. A number of high-profile attorneys chimed in as well. National security lawyer Bradley P. Moss said, “Hannity just made himself a witness in a congressional inquiry and the SDNY probe.”

Former federal prosecutor and MSNBC legal analyst Mimi Rocah agreed.

Rocah touched on a key point here too. If Hannity tried to resist a subpoena, he would probably be out of luck because certain privileges that one might try to invoke would not apply.

First off, if Hannity tried to claim that his conversations with Cohen are privileged because Cohen was a lawyer at the time so there was attorney-client privilege, that would likely fail, because Hannity claims Cohen was never his lawyer in the first place. As he was discussing his conversations with Cohen during the Trump interview, Hannity made this very clear.

“He was never my attorney,” Hannity said, noting that Cohen’s lawyer said otherwise during a court appearance. Even if Cohen was Hannity’s lawyer, it would be hard to imagine how Cohen’s discussion about Stormy Daniels would pertain to any representation of Hannity or any legal advice Hannity would have requested.

Another type of privilege that Rocah mentioned was the kind that journalists sometimes invoke to protect communications with sources.

As a publication from the American Bar Association notes, journalists have the ability to invoke or waiver the privilege to withhold not just the identities of their sources (not an issue here), but also “work product that could reveal confidential information.”

Well, Hannity himself has provided evidence that weakens that claim as well. The cable personality has stated numerous times that he is a talk show host and not a journalist and does not pretend to be one.

Without the protection of these privileges, it looks like Hannity could very well end up being questioned by Congress and federal prosecutors.

Ronn Blitzer is the Senior Legal Editor of Law&Crime and a former New York City prosecutor. Follow him on Twitter @RonnBlitzer.

[Image via Fox News screengrab]

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