Michael Cohen, the longtime attorney for Donald Trump who has publicly defended him in court and on TV, is now the subject of an intense FBI investigation. This revelation came to light after the FBI obtained a warrant to search and seize evidence from Cohen’s office – a move that raised eyebrows and lit the political world on fire.
What we don’t have as of this writing is any explanation or statement from investigators, and we don’t know what the FBI is alleging against Cohen. However, we do have an incredible response from the Trump Administration, including the President himself, on the raid.
Here’s what we know now, including some commentary from experts to help explain what this means and how it could be trouble for someone – either the FBI or Trump, depending on who you ask.
US Attorneys in New York obtained a search warrant and gave the FBI the go-ahead in raiding the offices of Trump lawyer Michael Cohen. The referral for the warrant came from Robert Mueller, and included in the raid was information on a $130,000 payment to porn star Stormy Daniels.
What is unknown is why Mueller was sniffing around Cohen, though it has been speculated that he came across pertinent information in his investigation of Trump associates and forwarded the information to the Manhattan US Attorneys. The alleged Daniels affair is outside of the purview of the Russia investigation, so it would seem improper for Mueller himself to pursue it, but it also shows that there may be something in the cover-up that doesn’t pass legal smell tests.
How Did Trump React?
Calling it a “disgrace” and an “attack on our country,” Trump is not too happy with what’s going on right now. In fact, according to the New York Times’ Maggie Haberman, it’s worse behind the scenes than in front of the camera.
Trump is angrier than he has been at any point in the many fuming news cycles, according to two people close to him. What that ultimately translates to is unclear.
— Maggie Haberman (@maggieNYT) April 10, 2018
But both Trump and Cohen believe this is really Mueller and that farming it out to SDNY was a fig leaf. Both sources say that this has crossed the "red line" that Trump laid out for Mueller going outside his purview in intvw w @nytmike @peterbakernyt and me last July
— Maggie Haberman (@maggieNYT) April 10, 2018
As Haberman also points out on Twitter, Trump can’t simply fire Mueller over this or anything else. He has to get someone in the Department of Justice – like Jeff Sessions? – to do it for him.
But What About Attorney-Client Privilege?
Good question, and it’s a question that every critic of the FBI/Mueller has been asking since the story broke. To answer that question, we look to Ken White, also known as “Popehat” on Twitter, who explains it at Reason.
2. Moreover, it’s not just that the office thought that there was enough for a search warrant. They thought there was enough for a search warrant of an attorney’s office for that attorney’s client communications. That’s a very fraught and extraordinary move that requires multiple levels of authorization within the Department of Justice. The U.S. Attorney’s Manual (USAM)—at Section 9-13.320—contains the relevant policies and procedures. The highlights:
The feds are only supposed to raid a law firm if less intrusive measures won’t work.
Such a search requires high-level approval. The USAM requires such a search warrant to be approved by the U.S. attorney—the head of the office, a presidential appointee—and requires “consultation” with the Criminal Division of the U.S. Department of Justice. This is not a couple of rogue AUSAs sneaking in a warrant.
Such a search requires an elaborate review process. The basic rule is that the government may not deliberately seize, or review, attorney-client communications. The USAM—and relevant caselaw—therefore require the feds to set up a review process.
White’s explanation goes on here, and I highly recommend you read it. He’s not just speculating here, either: He’s a former federal prosecutor.
In reading the USAM’s relevant sections, it appears that US Attorneys have a means of separating the truly privileged information from the relevant, criminal/fraud information, and that the courts are set up to be able to discern this information. So, as far as attorney-client privilege goes, it’s walking the line, but as of now we can’t make a determination.
Is This Good Or Bad?
I have a confession here: I don’t have any opinion on this issue right now. It’s near-impossible to form one without all of the information, and until the warrant is unsealed OR prosecutors leak something to the media, we can’t say if this is good for Trump or bad. What we can say is that by getting raided by the FBI and having privilege possibly suspended in this way means that getting disbarred is quite possibly the least of Cohen’s worries.