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.