After a year of almost weekly revelations about Robert Mueller’s investigation of Donald Trump’s 2016 campaign, even indictments and guilty pleas of campaign officials have grown familiar. It’s not that the special counsel, Mr. Mueller, is crying wolf; it’s that we’ve gotten used to real wolves. Only truly startling developments engage a lot of us.
The F.B.I. search of the office, home and hotel room of Mr. Trump’s attorney Michael Cohen is such a development. It’s historic, even in the lofty context of a special counsel investigation of the president.
This is what we know, in part from Mr. Cohen’s attorney: The United States attorney’s office in Manhattan, acting on a referral from Mr. Mueller, sought and obtained search warrants for Mr. Cohen’s law office, home and hotel room, seeking evidence related at least in part to his payment of $130,000 in hush money to the adult actress Stephanie Clifford, who goes by her stage name, Stormy Daniels. There are reports that the warrant sought evidence of bank fraud and campaign finance violations, which is consistent with an investigation into allegations that the Daniels payment was illegally sourced or disguised. (For example, routing a payment through a shell company to hide the fact that the money came from the Trump campaign — if that is what happened — would probably violate federal money-laundering laws.)
What does this 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.
Prosecutors must also consult with the criminal division of the Justice Department in Washington. Finally, prosecutors must convince a United States magistrate judge that there’s probable cause to support the search. Faced with a warrant application destined for immediate worldwide publicity, the judge surely took unusual pains to examine it. This search was not the result of Mr. Mueller or his staff “going rogue.”
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.
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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.
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But consider this: The Stormy Daniels payout may be outside the scope of the Russia investigation, but it’s possible that Mr. Cohen’s records are full of materials that are squarely within that scope. And the law is clear: If investigators executing a lawful warrant seize evidence of additional crimes, they may use that evidence. Thus Mr. Trump and Mr. Cohen, with their catastrophically clumsy handling of the Daniels affair, may have handed Mr. Mueller devastating evidence.
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.
- Discussion
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I've got an Op-Ed in the @NYTimes online about the Cohen search with a few more observations. https://t.co/a9mjmFm5y5
— OMFGHat (@Popehat) April 10, 2018
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