Monday the FBI raided the New York offices of President Trump’s longtime personal lawyer, Michael Cohen, who has been in the news for paying porn star Stormy Daniels not to talk about her alleged Trump tryst.
It’s possible that the government is going after Cohen for his Stormy maneuverings. But there’s reason to think the net is being cast wider than just who paid hush money to whom, how and when. Cohen, it will be remembered, turns up repeatedly in the DNC-funded dossier compiled by Christopher Steele. The claims about Cohen made there are hard to believe, if not patently absurd. But they do, nonetheless, put Cohen in the middle of the Russia probe.
President Trump was quick to voice his disapproval. : “It’s a disgraceful situation,” he said Monday, griping that Mueller is out of bounds. “I have this witch hunt constantly going on.”
The case was referred to the U.S. Attorney’s Office for the Southern District of New York by special counsel Robert Mueller, who is investigating Russian interference in the 2016 election. Cohen’s attorney, Stephen M. Ryan, protested the raid.
“The decision by the US Attorney’s Office in New York to conduct their investigation using search warrants is completely inappropriate and unnecessary,” said Ryan. “It resulted in the unnecessary seizure of protected attorney client communications between a lawyer and his clients.”
Ryan added that the government’s tactics were unjustified because “Mr. Cohen has cooperated completely with all government entities, including providing thousands of non-privileged documents to the Congress and sitting for depositions under oath.”
Ryan’s point that Cohen has been cooperating is a relevant one. “Searches of attorneys’ offices are ‘last resort’ practices,” a white-collar Washington lawyer tells me, “but where there is no other way to get the suspected evidence, they are done.”
As another Washington trial attorney says, “It is unusual, absent extraordinary circumstances, to raid the office of a ‘subject’ or ‘target’ of an investigation especially when the government has requested and received documents from the attorney.” If such tactics were used in anything other than compelling circumstances, such as the imminent destruction of evidence, the lawyer says, “then every government investigation would start by raiding the offices” of the suspect’s attorneys.
“It is very rare but not unheard of,” according to Solomon Wisenberg, Deputy Independent Counsel in the Whitewater/Lewinsky investigation, and now co-chair of the white-collar defense and government investigations group at Nelson Mullins. “Keep in mind that Trump is not a target and Cohen does not appear to be your everyday business attorney,” Wisenberg says. “From what I have read he is more of a consiglieri/fixer.”
Some have jumped to the counterintuitive conclusion that the president must be in the clear. Law professor Glenn Reynolds, who blogs as Instapundit tweeted, for example, that if Trump were under investigation, “raiding his lawyers would taint everything.”
What of Reynolds’ point? “When prosecutors/agents search an attorney’s office, they usually employ a clean team and dirty team,” says Wisenberg. “The dirty or taint team looks at the materials first, segregates privileged material, and does not tell the clean team about them.”
If so, one wonders where the U.S. attorneys would turn to find lawyers to staff up his “taint team.” An even bigger question will be the credibility of the clean/dirty divide: But as one Washington lawyer says, the fact that the search was executed under the authority of the U.S. Attorney for the Southern District of New York “seems a big deal to me—a lot more procedural hoops to jump through” than in the special counsel’s enterprise. And so, even though the raid was the result of a referral from Mueller’s office, the involvement of the New York prosecutors makes the raid “less susceptible to Rogue-Mueller analysis,” in the lawyer’s view.
Still, if any materials found in Cohen’s office are used to gather information on, or press charges against, the president, don’t expect Trump’s advocates to be satisfied that the FBI kept a fastidious firewall between clean information and dirty dirt.
