To hear the president’s allies tell it, the FBI raid Monday on the offices of Trump’s lawyer Michael Cohen was the latest indication of a politically charged Justice Department run amok. Fox News’s Sean Hannity bellowed that special counsel Robert Mueller has “ostensibly tonight declared war against the president of the United States.” Trump concurred, renewing his attacks on Mueller’s investigation as “a total witch hunt,” “a real disgrace,” and “an attack on our country” by people with “the biggest conflicts of interest I’ve ever seen.”
Hearing all that, you’d be forgiven for not realizing Mueller didn’t do anything to Cohen at all.
Here are the basic facts: The FBI raided Cohen’s Manhattan office, his home, and even a hotel room he’d been using at the Loew’s Regency, reportedly on suspicion of bank fraud, acting under a warrant obtained by the U.S. Attorney’s Office for the Southern District of New York. They seized Cohen’s computer, phone, and financial records, including communications between Cohen and his clients—most notably, of course, Donald Trump. Some of the records seized reportedly involve the $130,000 payment Cohen made to adult film actress Stormy Daniels. Cohen’s own lawyer, Stephen Ryan, panned the raid as “inappropriate and unnecessary,” and said that SDNY prosecutors had obtained the warrant through information passed along by Robert Mueller’s team. If this is true, it means Mueller discovered damaging evidence against Cohen, but it was New York prosecutors who took the extraordinary step of requesting authorization for the raid.
Why didn’t Mueller follow up on the information he uncovered himself? The regulations governing the jurisdiction of a special counsel authorize Mueller to “investigate new matters that come to light in the course of his or her investigation” with the authorization of the attorney general (or, in this case, Deputy AG Rod Rosenstein, since Jeff Sessions has recused himself). In this case, Mueller and Rosenstein apparently agreed that it was for the best not to fold an investigation into Cohen into the special counsel probe, but rather to assign it elsewhere—in this case, the U.S. attorney’s office that had jurisdiction over Cohen.
This is not to say Mueller’s team could not have legally investigated Cohen had Rosenstein authorized him to do so: the U.S. Attorney’s Manual provides protocols for how to properly investigate “an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients.” By opting instead to sequester himself from the proceedings entirely, Mueller took the most restrained and conservative course of action available to him in handling the Cohen information.
According to former prosecutor Sol Wisenberg, who served as independent counsel Ken Starr’s No. 2 during the Whitewater investigation, this was not only an acceptable move for Mueller, but a wise one, both to avoid involving himself in the sordid details of the Stormy Daniels scandal and to ensure he was not opening himself to accusations of partisan misconduct.
“He’s learned from the Ken Starr experience: Don’t get into sex,” Wisenberg said. “So he’s referred it out; they’re not interested in that. It’s totally appropriate if he’s come across information that he doesn’t want to handle that he refer it out. … I think that he knows he’d really be subject to criticism if he got into the Stormy Daniels thing.”
The criticism, of course, comes nonetheless. The argument from Trumpworld is that it doesn’t matter who actually ordered and carried out the raid: Mueller obtained damaging evidence about his subject’s lawyer, then sicced the Justice Department on him, an unconscionable breach of attorney-client privilege and the ostensible “declaration of war.”
There’s no question that maintaining attorney-client privilege in prosecutions federal and otherwise is a matter of utmost importance, and there’s a genuine conservative case to be made that the current restrictions on federal law enforcement, which are mostly a matter of checks and balances internal to the Justice Department, could be subject to abuse—SDNY prosecutors could ostensibly, for example, slip Mueller privileged information on the sly.
But even under current law, there’s a world of difference between what’s theoretically possible and what’s even remotely likely here. Consider the layers of Justice Department approval SDNY prosecutors needed to obtain to get the warrant to raid Cohen’s office. The acting head of the office, Robert Khuzami—a Trump appointee, for those keeping score at home—signed off on the warrant (Khuzami’s boss, fellow Trump appointee Geoffrey Berman, has reportedly recused himself). So did a federal magistrate judge. So did the Justice Department’s Criminal Division.
To dismiss all these actors as deep-state dissemblers beggars belief. There’s a far easier way to explain Mueller’s actions than to say he was declaring war on the president: He was just doing his job.
