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Why the F.B.I. Raid Is Perilous for Michael Cohen and Trump
I've got an Op-Ed in the @NYTimes online about the Cohen search with a few more observations.
Link to tweet
Why the F.B.I. Raid Is Perilous for Michael Cohen — and Trump
By Ken White
Mr. White blogs on law at Popehat.com.
April 10, 2018
....
What does {the approval for this search} tell us? First, it reflects that numerous officials — not just Mr. Mueller — concluded that there was probable cause to believe that Mr. Cohen’s law office, home and hotel room contained evidence of a federal crime. A search warrant for a lawyer’s office implicates the attorney-client privilege and core constitutional rights, so the Department of Justice requires unusual levels of approval to seek one. Prosecutors must seek the approval of the United States attorney of the district — in this case the office of Geoffrey Berman, the interim United States attorney appointed by President Trump.
....
Second, the search demonstrates that federal prosecutors and supervisors in the Justice Department concluded that Mr. Cohen could not be trusted to preserve and turn over documents voluntarily. The same regulations that require prosecutors to seek high-level approval for a warrant to search a law office also instruct them to use the least intrusive means to obtain evidence from a lawyer, and to consider requesting voluntary cooperation or serving a subpoena. Mr. Cohen’s lawyer has loudly protested that he had been cooperating. This search warrant means that prosecutors — including the United States attorney for the Southern District of New York, and the criminal division at the Justice Department — believed that Mr. Cohen could not be trusted to respond fully to a subpoena or might destroy documents.
Third, the search suggests that prosecutors most likely believe that Mr. Cohen’s clients used his legal services for the purpose of engaging in crime or fraud. Attorney-client communications are privileged, which is why it’s so unusual and difficult for prosecutors to get approval to search a law office. Justice Department regulations require federal prosecutors to set up a system to have a separate group — a so-called dirty team — review the files and separate out attorney-client communications so that the investigators and prosecutors won’t see anything protected by the privilege. ... But if a client is using a lawyer’s services for the purpose of engaging in crime or fraud, there is no privilege. The very aggressive search of Mr. Cohen’s office for attorney-client files suggests that the prosecutors believe they can convince a judge that communications between Mr. Trump and Mr. Cohen fall under the crime-fraud exception. If you think they can’t pull that off, think again — they’ve already done it once: Mr. Mueller persuaded a judge to apply the exception to compel testimony from Paul Manafort’s lawyer, arguing successfully that he engaged her services in order to commit fraud.
Finally, it’s significant that Mr. Mueller sent this matter to the federal attorney’s office in New York for it to pursue. Mr. Mueller is empowered to investigate both alleged coordination between Russia and the Trump campaign and any matters “that arose or may arise directly from the investigation.” Mr. Mueller’s referral of the Stormy Daniels matter to New York suggests he believes it is outside that scope of his investigation. Perhaps it arose from press coverage of Ms. Daniels’s incendiary claims and from the bumbling and inconsistent public responses of Mr. Cohen and President Trump. In other words, this could be an own goal by the president and Mr. Cohen. .... It’s easy to conclude that after so many bombshells, this is just another overfrantic news cycle. It’s not. It’s highly dangerous, and not just for Mr. Cohen. It’s perilous for the president, whose personal lawyer now may face a choice between going down fighting alone or saving his own skin by giving the wolves what they want.
Ken White is a criminal defense attorney and former federal prosecutor at Brown White & Osborn LLP in Los Angeles.
By Ken White
Mr. White blogs on law at Popehat.com.
April 10, 2018
....
What does {the approval for this search} tell us? First, it reflects that numerous officials — not just Mr. Mueller — concluded that there was probable cause to believe that Mr. Cohen’s law office, home and hotel room contained evidence of a federal crime. A search warrant for a lawyer’s office implicates the attorney-client privilege and core constitutional rights, so the Department of Justice requires unusual levels of approval to seek one. Prosecutors must seek the approval of the United States attorney of the district — in this case the office of Geoffrey Berman, the interim United States attorney appointed by President Trump.
....
Second, the search demonstrates that federal prosecutors and supervisors in the Justice Department concluded that Mr. Cohen could not be trusted to preserve and turn over documents voluntarily. The same regulations that require prosecutors to seek high-level approval for a warrant to search a law office also instruct them to use the least intrusive means to obtain evidence from a lawyer, and to consider requesting voluntary cooperation or serving a subpoena. Mr. Cohen’s lawyer has loudly protested that he had been cooperating. This search warrant means that prosecutors — including the United States attorney for the Southern District of New York, and the criminal division at the Justice Department — believed that Mr. Cohen could not be trusted to respond fully to a subpoena or might destroy documents.
Third, the search suggests that prosecutors most likely believe that Mr. Cohen’s clients used his legal services for the purpose of engaging in crime or fraud. Attorney-client communications are privileged, which is why it’s so unusual and difficult for prosecutors to get approval to search a law office. Justice Department regulations require federal prosecutors to set up a system to have a separate group — a so-called dirty team — review the files and separate out attorney-client communications so that the investigators and prosecutors won’t see anything protected by the privilege. ... But if a client is using a lawyer’s services for the purpose of engaging in crime or fraud, there is no privilege. The very aggressive search of Mr. Cohen’s office for attorney-client files suggests that the prosecutors believe they can convince a judge that communications between Mr. Trump and Mr. Cohen fall under the crime-fraud exception. If you think they can’t pull that off, think again — they’ve already done it once: Mr. Mueller persuaded a judge to apply the exception to compel testimony from Paul Manafort’s lawyer, arguing successfully that he engaged her services in order to commit fraud.
Finally, it’s significant that Mr. Mueller sent this matter to the federal attorney’s office in New York for it to pursue. Mr. Mueller is empowered to investigate both alleged coordination between Russia and the Trump campaign and any matters “that arose or may arise directly from the investigation.” Mr. Mueller’s referral of the Stormy Daniels matter to New York suggests he believes it is outside that scope of his investigation. Perhaps it arose from press coverage of Ms. Daniels’s incendiary claims and from the bumbling and inconsistent public responses of Mr. Cohen and President Trump. In other words, this could be an own goal by the president and Mr. Cohen. .... It’s easy to conclude that after so many bombshells, this is just another overfrantic news cycle. It’s not. It’s highly dangerous, and not just for Mr. Cohen. It’s perilous for the president, whose personal lawyer now may face a choice between going down fighting alone or saving his own skin by giving the wolves what they want.
Ken White is a criminal defense attorney and former federal prosecutor at Brown White & Osborn LLP in Los Angeles.