Raiding Cohen: The Crime and The Optics

When news broke that a warrant issued out of the Southern District of New York for multiple raids on Michael Cohen, Donald Trump’s lawyer and, as some newspapers add, “fixer,” as if that’s not redundant, there was only one thing clear: this was going to be a big deal.

No, not a big deal as in the equivalent of a judge issuing a warrant to allow a cop to take pictures of a teenager’s erect penis. Nor a big deal as in an unarmed black man shot to death. Those are substantive “big deals,” as in they are real. This was a perceived “big deal,” as in millions of people lose their minds over every burp and fart by, for or to this president. And the SDNY case was “referred” by Special Counsel Robert Mueller.

So this was a big deal, if you define that by the talking heads on cable TV discussing nothing else, and nothing they know anything about. because millions of people will watch, eat up every morsel of mindless and mindful speculation, believe in the most vague and meaningless weasel assertions without once stopping to ask, “wait, exactly how long is ‘many, many, many weeks,” because some WaPo reporter says that based on her experience, this “must have” been in the works for that long to put together such a complicated raid. None of this, by the way, is necessarily true, but it can be, or not, if she actually said anything substantive.

Ken White immediately wrote a lawsplainer about what it takes for the feds to get a search warrant for an attorney, which immediately crashed his blog, and was moved over to Reason for hosting. There are two critical points: that warrants for a lawyer’s office require serial approvals up to the attorney general. That the magistrate judge who signed off on the warrants was extremely careful in vetting the probable cause allegation. This is not the sort of thing that is done sloppily or thoughtlessly.

Is it even possible for a search warrant of a lawyer’s office? Sure. There is the crime/fraud exception to attorney/client privilege, where a lawyer cannot be party to a client’s crime under cover of the privilege. There is also the possibility that the lawyer, independent of his profession, commits a crime. He no more gets a free ride for committing a crime than anyone else. Such search warrants are rare and disfavored, as they send a chilling message as to the sanctity of the attorney/client privilege. That’s why they are vetted so heavily. People, especially other lawyers, find them extremely unsavory.

So what is it all about? We’re deluged, as usual, by speculation. Until we know, we don’t know. But we do know that this came from Mueller, such that it’s an offshoot of something he’s doing that came across his radar but fell outside the purview of his mandate. While Geoffrey Berman, serving as interim United States Attorney for the Southern District of New York while awaiting Senate confirmation as Trump’s nominee, was responsible for the warrant, it wasn’t born in his office, but Mueller’s. What relationship Mueller has to the warrant, or to the decision to go for the warrant, is unknown, and may never be known, but it will nonetheless have Mueller’s fingerprints on it.

In the seizure of Cohen’s computers and paper, there will be information that is privileged and does not relate to whatever offense provided the basis for the warrant. Some may apply to Trump. Some may apply to others. It all gets seized at the same time, to be gone through afterward. Since the government knows that there is a strong probability that they’ve seized privileged communications, a “clean team” should be used to vet the seized data and documents. This means people unrelated to the investigations, either of Cohen or Trump, should review it and make determinations as to whether it should be revealed to the prosecutors handling Cohen’s case.

Will they? Will they make the right call? Will people believe them regardless of what they do? Will Trump supporters ever believe that privileged communications from Cohen won’t be slipped to Mueller to be used against Trump?

But the extraordinary act of executing a warrant on Trump’s lawyer raises a very different nature of question, given the depth of division and fury in this country. If the offense for which this warrant was issued turns out to be something petty, or only moderately offensive, there will be a great many Americans who will believe with unshakable certainty that this was a grave injustice perpetrated against Trump for the purpose of seizing his privileged communications with his lawyer. At the very least, for denying Trump the advice and counsel of Michael Cohen.

To throw a bomb like this into the workings of such a volatile situation as Mueller’s investigation, it has to be more than real, but serious. So serious that no rational person can question the bona fides of the decision to act upon it, to search a lawyer, to search Trump’s lawyer. The forces of resistance will argue that Cohen isn’t above the law, that anything that harms Trump is worthwhile, that the only people who would possibly question this legitimacy of this decision are extremist Trump supporters. And nothing would shake their support, so they don’t count.

The possibilities bandied about, mostly relating to Stormy Daniels, the payoff, the possible FEC violation, may turn out to be accurate, or may be completely off base. Unless one truly enjoys mental masturbation or being featured on Rachel’s show, there’s no good reason to engage in such speculation. Until there’s information, there nothing to discuss.

But if it turns out to be something relating to the Stormy Daniels payment of $130,000 by Michael Cohen, it may thrill those who oppose Trump, fail miserably to quiet those who support Trump, and leave the vast middle feeling that the search of Michael Cohen’s papers, the breach of attorney/client privilege, at the behest of Robert Mueller, was over the line.

If this was a wrong committed by Trump, then Mueller should have dealt with it himself. If this is just a collateral swipe at Cohen, only salaciously related to Trump, which will not impugn a president, then the fact that the offense may be real, the warrant justified, won’t be enough to overcome the sense that they went too far. You don’t take down a president with a peashooter, and you don’t hunt a flea with an elephant gun. Eventually, we shall see what this is really all about.

22 comments on “Raiding Cohen: The Crime and The Optics

  1. Skink

    “To throw a bomb like this into the workings of such a volatile situation as Mueller’s investigation, it has to be more than real, but serious. ”

    Not necessarily–it could be just a really dumb thing to do. All the same, I think I’ll take a look at some old files. . . .

      1. Patrick Maupin

        I know many marketing people who can infer an entire hockey stick graph from a single data point.

  2. Ryan

    Assuming this is about a wrong committed by Trump, would a move like this reveal a level of desperation by the prosecutors to find evidence of crimes. IE if the prosecutors had the goods on Trump already they wound not opt to search his lawyers office, even if they could, considering all the sensitivities and potential problems with searching his lawyers office.

  3. Richard Kopf

    SHG,

    Have you ever heard of an issuing court inserting into the warrant the requirement that nothing that is seized be revealed to the investigating agents and prosecutors until an independent special master appointed by the court has determined that the material is within the purview of the warrant?

    I am familiar with “taint teams” but the independent and court appointed special master idea appeals to me, particularly in such a high profile case as this one where the public’s trust in the judicial system, let along the government writ large, is being put to the test by the awful optics.

    All the best.

    RGK

    1. SHG Post author

      During the brief but glorious Magistrate’s Revolt (before Mag. Grewal went legit for Facebook), warrant applications were rejected for this reason, and subsequently reversed by district judges. Mag. Grewal and others understood that when a computer was seized because it contained potential evidence of a crime, it came with everything else that was on the computer, all of which would be inspected despite the vast potential for abuse. And then, of course, plain view kicked in, because the physical world and the digital world don’t always rationally coincide.

      Listening to the talking heads last night discuss whether this was “unusual,” the absurdity of the question was impossible to ignore. This is going to be a fiasco unless they have Cohen doing something so awful that no one can question the need to search. It’s unclear whether there’s sufficient trust anymore that a taint team will suffice, but lack of one will be a disaster.

    2. Patrick Maupin

      “taint teams”

      There’s got to be a Ken White joke under there somewhere. Or at least a pony.

  4. Conner Leo

    Can the FBI use any information gained deemed not privileged to build a case against anyone involved? Can they only use information gained to go after whoever they were targeting in the first place?

      1. It's already broken fixing costs extra...

        Speaking of going there and keeping it real….

        So you are saying…..Cohen doesn’t have a photo of Trump’s cock or are you saying that if he does, it better be fucking “huge”? 😉

        You should really go “bi-polar” more often esteemed one. You are spot on with this post and the implications.

        Because if it is “little”, it will be you and your BAR buddies on both sides of the courtroom and even atop the bench that will be buying me out of all my classic 70’s anything “hairy” in the title inventory . (Just raised the price in the web store so you are already late)

        Anyway spot on post!! And if you like to gamble the window is also open on the odds that some serious bone “porn” was found in Cohens hotel safe-deposit box, home, and or office… Currently even money but I am pretty sure a few high-rollers will get their money in shortly, now that you put up this post, so expect the even money to change by the weekend.

        P.S. Flowers’ Flower is coming out latter this spring. It will be the first of 12 monthly releases in a year long series endeavor. There is plenty of room for you and Ken in the script if you are interested. And if you can, can you do me a solid next time you talk to that Randazza guy? I might need some legal help I cant afford. So if he didn’t hook up with the BackPage gold mine since the Feds took over I got some ground floor shares on the table if he is interested.

        P.S.S. Speaking of that Backpage thingy how much business you think you are gonna get out of your readers after the feds get done jerking off and frothing at the “top” and get down to the plain view fornication?

        https://www.clowncrack.com/2018/04/08/dick-less/

          1. John Barleycorn

            Speaking of spoonsfulls Skink, I wonder if The Dersh and Trump figured out a strategy, over dinner tonight, for talking Grassley into sharing his Tootsie Pops?

            I kind of doubt it, especially after hearing Grassley’s closing remarks at that Zuckerberg dude’s hearing today but you never know….

            https://www.youtube.com/watch?v=NVPdZBQm38M

            P.S. I would take it easy on the chamomile tonight Skink the daisy gang can only take so much and it is far to easy to forget which tea infuser ball you left the mushroom grind in…. And tomorrow is definitely not the day to over sleep, if you want to hedge the betting line and all….

  5. Rigelsen

    “That the magistrate judge who signed off on the warrants was extremely careful in vetting the probable cause allegation. This is not the sort of thing that is done sloppily or thoughtlessly.”

    I hope you’re right. However, we’ve seen a new legal and judicial rule being brought into play, the “because Trump” rule, which seems to trump all. So, while I don’t necessarily ascribe more confidence than hope to you, I’m much less sanguine that this will not turn out to stink just as much as it looks.

    And the newest stories in the NYT that they were looking for evidence that Cohen might have played a part in keeping back Trump news out of the news cycle isn’t helping matters. And, according to whoever is managing the NYT’s twitter feed, “because Trump” is cause enough to argue that Trump shouldn’t object if he had nothing to hide.

    I frankly don’t care much for Trump or about Trump. But the “because Trump” rule can be used against anyone, and seems to be causing a lot of people who might otherwise be expected to be even a little skeptical of prosecutorial and FBI overreach to instead sit in the amen corner.

    1. SHG Post author

      I deliberately left that line from the NYT editorial out of my post, as well as its 9/11 comparison conclusion, because it was too flagrantly bizarre, stupid and hypocritical that it would hijacked the point of the post. I may well be wrong. Time will tell. Trump being Trump isn’t an excuse for everybody else to abandon reason and integrity. At least not an acceptable reason.

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