AP/Pablo Martinez Monsivais
It is hard to know how to react to the search warrant that was executed by federal authorities on Monday at, according to media sources, Michael Cohen’s office, home, and hotel room, other than to note that it is a dramatic and extraordinary move, with all sorts of potentially ominous implications for Mr. Cohen and for President Trump.
Because of the sensitive interests involved and the inherent risks of damage to legitimate attorney-client relationships, the Department of Justice has established certain heightened procedures (“Searches of Premises of Subject Attorneys”) that must be complied with before seeking a warrant to search an attorney’s premises.
Those procedures include considering alternative ways of gathering evidence, obtaining high level approvals from Department officials, and establishing separate “privilege teams” to review the seized material in order to ensure (as much as possible) that prosecutors and investigators do not review privileged material.
In light of the fact that it has been reported that Mr. Cohen — who has represented President Trump and the Trump organization for years — has met with federal investigators and provided them with documentary evidence, it is clear that investigators believe that Cohen has been less than candid and has withheld critical evidence from them, and that he would be no more forthcoming if he were to receive a subpoena (and might well destroy any evidence in his possession if he were to receive one).
It is unclear what evidence investigators are looking for, although they are evidently interested in the details surrounding the $130,000 payment that Cohen has admitted he made to pornographic actress Stephanie Clifford (better known by her stage name Stormy Daniels) and possibly payments made to former Playboy Playmate Karen McDougal to see whether these payment violated campaign finance laws. It has also been reported that they may be interested in, among other things, the details of projects that Cohen was involved in on behalf of the Trump organization in Russia, Ukraine, Azerbaijan, and Georgia.
Another issue, of course, is whether the communications at issue between Cohen and Trump will ultimately be deemed to be legitimate attorney-client privileged communications. In order for the privilege to apply, the communication has to be for the purpose of securing legal advice between a client and another persona acting in his capacity as his attorney.
With respect to the payment to Ms. Daniels, Cohen has said that he paid the money out of his own pocket out of friendship to the President — which he characterized as a “private transaction” — without Trump’s knowledge. Moreover, if the communications between Trump and Cohen were in furtherance of committing a fraudulent act or other crime, the well-recognized crime fraud exception to the attorney-privilege might apply, in which case the privilege would be set aside.
One final intriguing aspect of these events is the fact that the raid was conducted under the auspices of the U.S. Attorney’s Office for the Southern District of New York, not Special Counsel Bob Mueller’s Office. This suggests a couple of interesting possibilities. The first is that Deputy Attorney General Rod Rosenstein, who is overseeing the Mueller investigation in light of Attorney General Jeff Sessions’s recusal, has decided, at least for the moment, not to expand Mueller’s mandate to cover these new matters. Another possibility is that Rosenstein and Mueller are attempting to insulate this investigation from interference in the unlikely event that Trump were to decide to fire Mueller.
Of course, none of the speculations I have just outlined may end up being true, and this may turn out to be, to quote the President, a “TOTAL WITCH HUNT” aimed at discrediting him. We will, of course, have to wait to see how this all unfolds.
John Malcolm is currently Vice President of the Institute for Constitutional Government at the Heritage Foundation and formerly served as an Assistant U.S. Attorney, an Associate Independent Counsel, and Deputy Assistant Attorney General in the Criminal Division of the U.S. Department of Justice.