Let's try this again - Why the F.B.I. Raid Is Perilous for Michael Cohen — and Trump

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Goodness. Popehat moving on up in the world. An op-ed in the NYtimes.

https://mobile.nytimes.com/2018/04/10/opinion/trump-michael-cohen-fbi-raid.html#click=https://t.co/a9mjmFm5y5

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 Geoffrey Berman, the interim United States attorney appointed by President Trump.

Continue at the link. Nice, in-depth analysis. 

[homersapien 11,357]

And for those conspiracists who claim Mueller is redirecting his investigation because the main thrust went "dry":

"... 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...."

[NolaAuTiger 3,295]

https://thefederalist.com/2018/04/10/raid-trump-lawyer-michael-cohen-means-far/ 

Some good insight also

As you have likely heard, President Trump’s personal lawyer, Michael D. Cohen, did not have a very good day yesterday.

As first reported by The New York Times, federal agents raided Cohen’s office and seized records relating to a variety of topics, allegedly including payments to onscreen prostitute Stormy Daniels. According to Twitter, a hotel room connected to Cohen was also searched, but it’s unclear if that is true.

Of course, any time the feds execute a search warrant it’s pretty serious business. Here, however, given that it’s the longtime personal attorney for the president of the United States, eyebrows are rightfully raised. The NYT has reported, and Cohen’s attorney confirmed in a statement, that Special Counsel Robert Mueller referred, at least in part, the case to prosecutors in the Southern District of New York (think Chuck Rhoades, for those who watch “Billions”).

As an initial matter, some may be asking why prosecutors didn’t simply subpoena the records. It’s a good question and not easily answered with the little information available. That said, search warrants are often executed without any notice when there is a fear of the destruction of evidence or an ongoing crime.

To obtain a search warrant, prosecutors have to present “probable cause” (usually in the form of a sworn affidavit by a member of law enforcement—e.g., an FBI agent) to a federal judge. Basically, there has to be evidence that a crime has been, or is being, committed. Hunches and speculation will not cut it. While there has been talk in the past several months about secret court warrants being signed without any real evidence, it’s extremely unlikely that a federal judge in the SDNY signed a search warrant based on guesswork.

As for the referral to the SDNY, if I had to guess, I would say its investigation of Cohen is unrelated to Mueller’s “Russia” investigation and likely outside Mueller’s mandate, although some, including this author, think Mueller has already strayed outside his mandate. That’s an article for another time.

However, as part of Mueller’s investigation, Cohen has produced thousands of pages of documents. There is a good chance that these materials, at least in part, sparked Mueller’s referral.

Earlier this year, Cohen admitted that he had paid Daniels $130,000 “out of his own pocket” for his “client” and “friend” President Trump. The payment was several weeks before the 2016 election, and has given rise to talk of possible violations of the Federal Election Campaign Act. That’s something this lawyer knows nothing about, so I will leave it there.

Late yesterday, the Washington Post reported Cohen is being investigated for bank fraud as well. It’s also quite common for the feds to include allegations of money laundering when money is involved, so there is a chance that’s in play.

You may be wondering about the seizure of materials covered by attorney-client privilege. There are rules that cover this, and generally speaking the prosecutors and agents investigating the case should never see any such materials. There are “taint teams” that review potentially privileged information, and keep it walled off from the attorneys prosecuting the case. Indeed, given that a law office was the subject of the raid, there was likely a special agent on site during the execution of the search warrant to ensure privileged materials were handled in an appropriate manner.

It remains to be seen how this all shakes out. The SDNY does thorough investigations and will be exhaustive in its work. If a grand jury ultimately returns an indictment against Cohen, what that ultimately means for him few can predict. The president, however, should probably look into new counsel.

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NoAl....this stuff confuses me......seems these investigators are looking for a crime.   Best I can tell, they don't actually have evidence of one but apparently think the guy is doing something wrong so they will go in and turn his records upside down to see what they can find.    That's a pretty slippery slope it seems.  

And having  Federal (politically appointed ) Judges as the gatekeeper does not necessarily give me comfort....especially when DOJ or FBI is making the request.    I'm wondering what percent of the time the Judge says "no".....betting it is pretty rare.....about the same number of times a DA fails to get an indictment from a Grand Jury panel.   

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12 minutes ago, AU64 said:

NoAl....this stuff confuses me......seems these investigators are looking for a crime.   Best I can tell, they don't actually have evidence of one but apparently think the guy is doing something wrong so they will go in and turn his records upside down to see what they can find.    That's a pretty slippery slope it seems. 

And having  Federal (politically appointed ) Judges as the gatekeeper does not necessarily give me comfort....especially when DOJ or FBI is making the request.    I'm wondering what percent of the time the Judge says "no".....betting it is pretty rare.....about the same number of times a DA fails to get an indictment from a Grand Jury panel.   

The fact that were even able to obtain a warrant of this nature given the obstacles involved is a solid indicator that Cohen is already boned.

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11 minutes ago, AUDub said:

The fact that were even able to obtain a warrant of this nature given the obstacles involved is a solid indicator that Cohen is already boned.

Not sure what the obstacles were.....somehow a FISA court accepted a political document as justification for an investigation.  

I've lost faith in the objectivity of the judiciary in recent years.    Most high level judges are appointed and are smart enough to know where their support comes from and if you look at what is going on in California courts, these upper level judges are as political as any ward heeler in Chicago or New York. 

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1 minute ago, AU64 said:

Not sure what the obstacles were.....somehow a FISA court accepted a political document as justification for an investigation.  

I've lost faith in the objectivity of the judiciary in recent years.    Most high level judges are appointed and are smart enough to know where their support comes from and if you look at what is going on in California courts, these upper level judges are as political as any ward heeler in Chicago or New York. 

Former federal prosecutor and current defense attorney Ken White, from the article I shared yesterday:

Quote

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. As the USAM puts it:

In order to avoid impinging on valid attorney-client relationships, prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law. Consideration should be given to obtaining information from other sources or through the use of a subpoena, unless such efforts could compromise the criminal investigation or prosecution, or could result in the obstruction or destruction of evidence, or would otherwise be ineffective.

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. That process might involve a judge reviewing the materials to separate out what is privileged (or what might fall within an exception to the privilege), or else set up a "dirty team" that does the review but is insulated from the "clean team" running the investigation. Another option is a "special master," an experienced and qualified third-party attorney to do the review. Sometimes the reviewing team will only be identifying and protecting privileged material. Sometimes the reviewing team will be preparing to seek, or to implement, a court ruling that the documents are not privileged. (Robert Mueller is aggressive on this sort of thing; he already sought and obtained a court ruling that some of Paul Manafort's communications with his lawyers were not privileged because they were undertaken for the purpose of fraud—the so-called "crime-fraud exception" to the attorney-client privilege.)

3. A magistrate judge signed off on this. Federal magistrate judges (appointed by local district judges, not by the president) review search warrant applications. A magistrate judge therefore reviewed this application and found probable cause—that is, probable cause to believe that the subject premises (Cohen's office) contains specified evidence of a specified federal crime. Now, magistrate judges sometimes are a little too rubber-stampy for my taste (notably, recall the time that a magistrate judge signed off on a truly ludicrous gag order forbidding Reason from revealing that it had been served with a subpoena for information identifying commenters). But here, where the magistrate judge knew that this would become one of the most scrutinized search warrant applications ever, and because the nature of the warrant of an attorney's office is unusual, you can expect that the magistrate judge felt pretty confident that there was enough there.

 

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4 minutes ago, AUDub said:

magistrate judge felt pretty confident that there was enough

There it is...    a political appointee making a decision of a political nature against a political opponent....what could be fairer than that? 

Guys like Manafort and Cohen are big boys with lots of money.  .....but that same game can be played with someone like General Flynn or Gates who can't afford to play the game and end up signing whatever the Feds demand...just to avoid bankruptcy ......and then there is Tony Podesta who was also an unregistered agent has mostly walked and nobody has turned his office or his life upside down to see what he has been up to as lobbyist for foreign countries.  . 

It's big-boy power politics and absolutely cutthroat.....so please don't make it sound like the justice that the founders had in mind.

[TitanTiger 20,472]

12 minutes ago, AU64 said:

There it is...    a political appointee making a decision of a political nature against a political opponent....what could be fairer than that? 

Guys like Manafort and Cohen are big boys with lots of money.  .....but that same game can be played with someone like General Flynn or Gates who can't afford to play the game and end up signing whatever the Feds demand...just to avoid bankruptcy ......and then there is Tony Podesta who was also an unregistered agent has mostly walked and nobody has turned his office or his life upside down to see what he has been up to as lobbyist for foreign countries.  . 

It's big-boy power politics and absolutely cutthroat.....so please don't make it sound like the justice that the founders had in mind.

So the long and short of it is, no matter who signs off, no matter how many extra safeguards are in place to make sure a raid of this nature has to meet a high bar of probable cause, no matter the judge, or member of Trump's own DOJ, no matter whether Mueller handles it himself or hands it off to a federal judge to do with as he sees fit - a way will be found to make it look suspect, political and the brainchild of Democrats or Never-Trumpers?  Because that's what it sounds like.  The judge was a Republican appointee - so he must be part of the Never-Trump GOP establishment.  If the judge was a Democrat appointee then it would be an obvious attempt to smear the President by liberals.  This goes on and on down the line - no matter what the specifics are, they can be spun to try and deflect or defend Trump.

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40 minutes ago, AU64 said:

There it is...    a political appointee making a decision of a political nature against a political opponent....what could be fairer than that? 

That’s what magistrate judges have been tasked with as long as they’ve existed.

Poisoning the well is a relatively worn out tactic at this point. I understand you automatically revert to accusing the judge of being a political adversary, but that affadavit doesn’t get to their desk without the approval of a lot of folks Trump put in place, and there’s little doubt this judge knew just how heavily scrutinized this decision would be and surely took that into account before issuing the warrant.

I mean, sure. There’s a minute chance this could be some nefarious plot to undermine Trump (I’d put higher stakes on me winning the lottery, frankly), but it’s extremely likely the obvious answer is the correct one, that there’s rock solid evidence Cohen has committed a crime.

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1 minute ago, AUDub said:

That’s what magistrate judges have been tasked with as long as they’ve existed.

Poisoning the well is a relatively worn out tactic at this point. I understand you automatically revert to accusing the judge of being a political adversary, but that affidavit doesn’t get to their desk without the approval of a lot of folks Trump put in place, and there’s little doubt this judge knew just how heavily scrutinized this decision would be and surely took that into account before issuing the warrant.

I mean, sure. There’s a minute chance this could be some nefarious plot to undermine Trump (I’d put higher stakes on me winning the lottery, frankly), but it’s extremely likely the obvious answer is the correct one, that there’s rock solid evidence Cohen has committed a crime.

With his involvements I would  not be too surprised....but I am of the belief that the only reason he has come to the attention of anyone in the Washington who decided to turn his legal practice inside out was because of his association with DT.    But if they have something on him, go ahead and do what needs doing.   

There must be a hundred (maybe a thousand) high rollers like him in NYC ..making deals, keeping prominent people out of trouble, etc.....and nobody has any interest in them....because.....you never know when you might need a guy like him.

[AU64 10,122]

11 minutes ago, TitanTiger said:

So the long and short of it is, no matter who signs off, no matter how many extra safeguards are in place to make sure a raid of this nature has to meet a high bar of probable cause, no matter the judge, or member of Trump's own DOJ, no matter whether Mueller handles it himself or hands it off to a federal judge to do with as he sees fit - a way will be found to make it look suspect, political and the brainchild of Democrats or Never-Trumpers?  Because that's what it sounds like.  The judge was a Republican appointee - so he must be part of the Never-Trump GOP establishment.  If the judge was a Democrat appointee then it would be an obvious attempt to smear the President by liberals.  This goes on and on down the line - no matter what the specifics are, they can be spun to try and deflect or defend Trump.

Just an observation that at the top of the political food chain the concept of party affiliation is not that important.   Elected officials from one party or the other come and go....but the next level remains, mostly unaffected by who the appointees are...knowing the appointees have a short life span.  Likely these appointees are just folks to be tolerated but not necessarily folks that command their loyalty.   That's evident all over the DOJ and  FBI.  . 

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2 hours ago, AU64 said:

With his involvements I would  not be too surprised....but I am of the belief that the only reason he has come to the attention of anyone in the Washington who decided to turn his legal practice inside out was because of his association with DT.    But if they have something on him, go ahead and do what needs doing.   

There must be a hundred (maybe a thousand) high rollers like him in NYC ..making deals, keeping prominent people out of trouble, etc.....and nobody has any interest in them....because.....you never know when you might need a guy like him.

He stands out a bit. Cohen apparently has a long and pretty sordid history being a lawyer/fixer for some pretty seedy characters.

[NolaAuTiger 3,295]

22 minutes ago, AUDub said:

He stands out a bit. Cohen apparently has a long and pretty sordid history being a lawyer/fixer for some pretty seedy characters.

I wonder if he's ever been subject to an investigation by New York's Attorney Disciplinary Committee? Could be telling of character...

Then again, bigger issues than potential ethical violations right now. 

[AU64 10,122]

19 minutes ago, AUDub said:

He stands out a bit. Cohen apparently has a long and pretty sordid history being a lawyer/fixer for some pretty seedy characters.

I'm not surprised..., this is probably not his first rodeo as you note....likely been doing stuff like this for years.....but also likely if DT were not his client, we would have never heard of him.   

Meanwhile, the next time we have a trial of some foreign terrorist, I'm looking forward to having the FBI raid the defense attorney's office and see who is paying the fees and where the money is coming from.     I'm also wondering if this has set some sort of precedent  for ability of the law to take a look at client-attorney paperwork.   I saw the explanation which sounded a bit tenuous and could be made in a lot of cases. 

[homersapien 11,357]

19 hours ago, AU64 said:

Just an observation that at the top of the political food chain the concept of party affiliation is not that important.   Elected officials from one party or the other come and go....but the next level remains, mostly unaffected by who the appointees are...knowing the appointees have a short life span.  Likely these appointees are just folks to be tolerated but not necessarily folks that command their loyalty.   That's evident all over the DOJ and  FBI.  . 

Do you think that's a bad thing? 

Would you rather have our most powerful government figures giving priority for their political party over the rule of law?

[Brad_ATX 13,654]

2 hours ago, AU64 said:

I'm not surprised..., this is probably not his first rodeo as you note....likely been doing stuff like this for years.....but also likely if DT were not his client, we would have never heard of him.   

Meanwhile, the next time we have a trial of some foreign terrorist, I'm looking forward to having the FBI raid the defense attorney's office and see who is paying the fees and where the money is coming from.     I'm also wondering if this has set some sort of precedent  for ability of the law to take a look at client-attorney paperwork.   I saw the explanation which sounded a bit tenuous and could be made in a lot of cases. 

He kind of opened this pandora's box on himself when he admitted to paying Stormy Daniels from his own pocket.  When it then came to light that the payment was part of a contracted agreement for Trump, and Cohen admitted to paying it, he kind of opened himself up.  Had they stayed silent, like any good attorney and client would do when any hint of an investigation is going on, he probably would have been fine.  

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2 minutes ago, Brad_ATX said:

He kind of opened this pandora's box on himself when he admitted to paying Stormy Daniels from his own pocket.  When it then came to light that the payment was part of a contracted agreement for Trump, and Cohen admitted to paying it, he kind of opened himself up.  Had they stayed silent, like any good attorney and client would do when any hint of an investigation is going on, he probably would have been fine.  

True....a pretty dumb thing to do for a guy who is supposed to be some kind of high end lawyer...

[AU64 10,122]

19 minutes ago, homersapien said:

Do you think that's a bad thing? 

Would you rather have our most powerful government figures giving more priority for their political party than the rule of law?

So you think those two FBI officials exchanging tweets were concerned about "rule of law" ?....get serious....those comments were totally political by a couple of high level FBI employees who probably thought they were untouchable.

But yes, I much prefer rule of law but not sure we are getting that either.....

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1 minute ago, AU64 said:

True....a pretty dumb thing to do for a guy who is supposed to be some kind of high end lawyer...

Trump has a lot of trouble finding legit legal representation. He has a reputation among the big time firms, you see.

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3 minutes ago, AUDub said:

Trump has a lot of trouble finding legit legal representation. He has a reputation among the big time firms, you see.

I can imagine.....probably does what he wants to do rather than what his attorneys suggest....  

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5 minutes ago, AU64 said:

I can imagine.....probably does what he wants to do rather than what his attorneys suggest....  

That's definitely part of it. The other part is he has a history of stiffing them. 

[SaltyTiger 7,776]

2 minutes ago, AUDub said:

That's definitely part of it. The other part is he has a history of stiffing them. 

Good for him if he can stiff a lawyer. Question? In a situation like this do we pay the Presidents legal fees or is that his tab. 

Has to be something to this involving Cohen

[homersapien 11,357]

46 minutes ago, AU64 said:

So you think those two FBI officials exchanging tweets were concerned about "rule of law" ?....get serious....those comments were totally political by a couple of high level FBI employees who probably thought they were untouchable.

But yes, I much prefer rule of law but not sure we are getting that either.....

What tweets are you talking about?

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10 minutes ago, homersapien said:

What tweets are you talking about?

Strzok and Page

A point they often gets overlooked is that even if there is evidence of anti-trump bias, that may not matter. All investigations are biased to a degree against the party being investigated. No one wants to end up feeling like they wasted their time coming up with nothing. The FBI and the police are expected to be biased against the subject. That’s  why you never talk to them without your lawyer. 

It is their job to follow the law and provide real, unaltered evidence in a forthright and complete fashion. 

There is no indication that either of these individuals intended to break the law or fabricate or withhold evidence. It doesn't matter what their personal opinions were as long as it didn't lead to malpractice at work.