Just an ordinary day in 2018, when FBI agents are rifling through the president’s lawyer’s papers to find out about a hush-money payoff to a porn star.
Two things about this. One: It surely has to do with more than Stormygate. The FBI wouldn’t make a move this explosive because they’re worried about an undeclared two-year-old campaign contribution.
Two: Trump is going to blow a gasket, above and beyond his usual Russiagate indignation. With the possible exception of Keith Schiller, there may be no one in TrumpWorld who knows as many secrets about the president as Michael Cohen. If he’s done anything criminal in the past, Cohen not only would probably know about it, he might have the paperwork to prove it. I wonder who’s getting fired — Sessions, Rosenstein, or Mueller himself.
Federal prosecutors in Manhattan obtained the search warrant after receiving a referral from the special counsel, Robert S. Mueller III, according to Mr. Cohen’s lawyer, who called the search “completely inappropriate and unnecessary.” The search does not appear to be directly related to Mr. Mueller’s investigation, but likely resulted from information he had uncovered and gave to prosecutors in New York…
The payments to Ms. Clifford are only one of many topics being investigated, according to a person briefed on the search. The F.B.I. also seized emails, tax documents and business records, the person said.
The seized records include communications between Mr. Trump and Mr. Cohen, which would likely require a special team of agents to review because conversations between lawyers and clients are protected from scrutiny in most instances.
Trump warned Mueller early on not to cross the line by expanding his investigation into Russia-related matters in 2016 into a full-blown investigation of the president, his business, etc. Mueller’s answer appears to be, “Fine. If I stumble across anything unrelated to Russia, I’ll just hand that off to the relevant U.S. Attorney.” He won’t exceed the scope of his inquiry but others prosecutors will.
How unusual is it for the feds to raise a lawyer’s office? Former Assistant U.S. Attorney Ken White:
A federal search of an attorney's office is a Very Big Deal, requiring layers of approval, including at DoJ. See USAM 9-13.420 https://t.co/P41hJdXU2M
— IncitementToResurrectionHat (@Popehat) April 9, 2018
Imagine how many layers of approval it would require when it’s the president’s lawyer. At a minimum, notes White, U.S. Attorney Geoffrey Berman (a Trump appointee) would have signed off. I wonder if Rod Rosenstein was consulted. The politics are so explosive that it’s unimaginable lower-ranking DOJ officials would have ordered it without letting the higher-ups know. More from White:
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. 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.
That raises the question: What could be so terribly incriminating that Berman, Rosenstein, and a federal magistrate judge would risk embarrassing Trump by doing something like this? What do they think Cohen has but hasn’t turned over that’s worth a raid?
Coincidentally, McClatchy published this story just three days ago:
Special Counsel Robert Mueller’s investigators this week questioned an associate of the Trump Organization who was involved in overseas deals with President Donald Trump’s company in recent years.
Armed with subpoenas compelling electronic records and sworn testimony, Mueller’s team showed up unannounced at the home of the business associate, who was a party to multiple transactions connected to Trump’s effort to expand his brand abroad, according to persons familiar with the proceedings.
Investigators were particularly interested in interactions involving Michael D. Cohen, Trump’s longtime personal attorney and a former Trump Organization employee. Among other things, Cohen was involved in business deals secured or sought by the Trump Organization in Georgia, Kazakhstan and Russia.
Maybe Mueller has information about a business deal not involving Russia and felt it’d be safer to refer that matter to the U.S. Attorney in Manhattan rather than pursue it himself and risk violating the boundaries of his Russiagate authority. The Stormy Daniels matter may be low-hanging fruit that Mueller’s interested in as a way to potentially flip Cohen. If he can find written evidence somewhere that Cohen made the payment with an eye to influencing the election, that would potentially make it easy to prove that it was in fact a campaign contribution for legal purposes — an undeclared one, for which Cohen could be punished. Unless he’s willing to cooperate.
Is he? The core, core, core duty of being Donald Trump’s “fixer,” one would think, is taking as many bullets as is necessary for the boss. If that means going to jail for a thousand years on contempt charges because you won’t testify against him, that’s what it means.
His lawyer is outraged:
— Monica Alba (@albamonica) April 9, 2018
It wasn’t just Cohen’s law office either:
CBS's Pat Milton reports the FBI stormed not only Michael Cohen's office, but also his New York residence, seizing documents and other material, as authorized in a search warrant.
— Steven Portnoy (@stevenportnoy) April 9, 2018
It was more than that! Vanity Fair says they raided his hotel room as well. I wonder if that’s standard practice or if they feared Cohen might start destroying evidence in other locations once he found out that they were raiding another.
He’s now involved in two criminal investigations, one Mueller’s, the other the Manhattan U.S. Attorney’s. That’s extra pressure to cooperate with Mueller, as he could conceivably be indicted by the DOJ in two different jurisdictions if he doesn’t. This is Russiagate’s boldest squeeze play yet.
Here’s Bill Kristol noting, correctly, that “This is war.” Stand by for updates.
"This is war." @BillKristol thinks the FBI raiding Trump attorney Michael Cohen's office "shows that we are very close to the end game" regarding special counsel Robert Mueller's investigation https://t.co/UiA4ob7HPZ pic.twitter.com/pNNNdagQ98
— The Lead CNN (@TheLeadCNN) April 9, 2018
Update: How can the feds seize communications between a lawyer and client? Aren’t those privileged? They are, but see this Forbes piece from last summer about what happens when a prosecutor thinks an attorney is mixed up in crime. A separate team of lawyers that isn’t working on the case are brought in to review seized communications for privilege concerns; the privileged stuff is culled from the non-privileged stuff and only the latter is handed over to the prosecuting attorneys. A key point, though: Communications showing that the client intended to commit a crime or fraud are *not* privileged. Those would also be handed over to the U.S. Attorney’s prosecuting attorneys by the “taint team” in this case.
Update: I asked White if it’s safe to assume that the triple raid — home, office, hotel room — means the feds feared Cohen would destroy evidence. Quote: “The search of a law firm means that the U.S. Attorney for the Southern District of New York, and someone high up in the Department of Justice, agreed that less intrusive methods like cooperation or a subpoena were not enough — and that almost certainly means they concluded that destruction of evidence or non-compliance were serious risks.”
Update: It was Rod Rosenstein who told Mueller to hand the matter off to the Manhattan U.S. Attorney, per Bloomberg: “Mueller brought information involving Cohen to Deputy Attorney General Rod Rosenstein, who decided that the matter should be handled by the U.S. attorney for the Southern District of New York rather than by Mueller’s team, according to a person familiar with the matter.”
Update: Stormy Daniels’s lawyer, Michael Avenatti, is keeping his eyes on the prize: “As I predicted last week on CNN and MSNBC, Mr. Cohen has been placed in the crosshairs by Mr. Trump. He has been set-up to take the fall.”
Update: Just a blurb so far from WaPo, but a revealing one:
BREAKING: Trump attorney Cohen is being investigated for possible bank fraud, campaign finance violations, according to a person familiar with the case.
This story will be updated.
Campaign finance violations point directly at Stormygate. If the hush money was paid for the purpose of influencing the election, it’s a campaign contribution and the fact that Cohen never reported it is a no-no. But this might not be only about Stormy. Remember, Jessica Drake also may or may not be subject to an NDA. Steve Bannon told Michael Wolff that Trump lawyer Marc Kasowitz “took care of” many women during the campaign. It’s hard to imagine the feds raiding Cohen’s office over one unreported contribution, but what if they have reason to believe there were 10? 20?
The bank-fraud angle may also be related to Stormygate. Remember this Journal story from a month ago?
The bank used by President Donald Trump’s personal lawyer to wire $130,000 to a former adult-film actress flagged the transaction as suspicious and reported it to the Treasury Department, according to a person familiar with the matter…
City National Bank launched an internal inquiry of its own about the payment a year after [Daniels’s lawyer] received the funds in his client-trust account there, the person said. City National sought information about the source of funds wired to Mr. Davidson’s account, the person said. The inquiry was first reported by The Washington Post.
The one-year lag between the payment by Mr. Cohen and the bank inquiry is unusual. It suggests that City National received new information that prompted it to take a fresh look at the transaction, said Charles Intriago, a former federal prosecutor and money-laundering expert.
The theory at the time was that City National took a renewed interest in the payment because some law-enforcement office brought it to their attention. Mueller was an obvious possibility. And now here’s the U.S. Attorney in Manhattan, following a referral from Mueller’s office, raiding Cohen’s home and office.
Update: Uh oh.
Raid on Cohen office sinking in at Trump World. One source close to WH saying “Mueller has gone rogue.”
— Jim Acosta (@Acosta) April 9, 2018
"It's a disgraceful situation," Trump says of Cohen raid, per pool. "I have this witch hunt constantly going on… It's an attack on our country, what we all stand for." Says the special counsel is the "most conflicted group of people I have ever seen."
— Josh Dawsey (@jdawsey1) April 9, 2018
WH POOL REPORT 6:19 P.M.
Trump addressed the Cohen raid at the top of the military leadership meeting.
Quick comments: “it’s a disgraceful situation.”
“I have this witch hunt constantly going on.”
“It’s an attack on our country… what we all stand for.”
— Robert Costa (@costareports) April 9, 2018
“Attack on our country” is strong language even for Trump. I’ll be surprised if Rosenstein lasts the week, let alone Berman. If one of them gets fired, imagine the headache involved in determining whether that amounts to obstruction of justice — and if it does, which prosecutor is charged with bringing that case.
Update: Since we’re well into anything-can-happen-now territory, I asked Ken White what effect an instant pardon would have on the Cohen probe. If Trump pardoned him tonight, would the feds be required to return all of the documents they just seized? After all, if the evidence was seized with probable cause that Cohen had committed a crime and Cohen is suddenly no longer prosecutable, what’s the point of retaining the evidence?
White says they can keep it, though: “Search warrant is different than an arrest warrant. Only requires showing that the premises have evidence of a specified federal crime. Pardon wouldn’t require immediate turnover. He could file a motion for a return after a pardon, but that’s unlikely. Also: a pardon of Cohen doesn’t quash the broader investigation. Cohen’s not likely to be the only player.”
Update: At 6:40 p.m. ET Trump is on TV and unhappy:
BREAKING: President Trump says the FBI raid of his personal attorney is a “real disgrace, it’s an attack on our country,” and calls the investigation “a total witch hunt” https://t.co/hcNsBbjpr1 pic.twitter.com/H6tkZWczSq
— The Situation Room (@CNNSitRoom) April 9, 2018
Update: Regarding the supposed privileged nature of Trump’s and Cohen’s communications about Stormy Daniel, watch this if you missed it a few weeks ago. Real short:
.@NorahODonnell: [Cohen] took out a home equity loan to pay off Stormy Daniels?
Schwartz: To get the money quickly.@GayleKing: Does that make sense to you?
— CBS News (@CBSNews) March 29, 2018
That’s Cohen’s lawyer stressing that Cohen wasn’t acting on behalf of David Dennison, a.k.a. Trump, in the hush-money deal. Remember, Cohen was actually a *party* to that agreement in the form of the company he established (EC, LLC) to make the payment to Daniels. Arguably it’d be a conflict of interest for him to sign on behalf of EC, LLC and act as Trump’s lawyer on the same deal. Beyond that, Trump has claimed he knew nothing of the deal; if Cohen was acting as his lawyer, he breached his ethical duties in not informing Trump of the details before signing on his behalf.
Long story short, if Cohen wasn’t acting as Trump’s attorney on the Stormy deal then … there’s no attorney-client relationship, at least with respect to that contract. And so their communications aren’t privileged.
Update: The state of play on April 9, 2018: “The searches open a new front for the Justice Department in its scrutiny of Mr. Trump and his associates: His longtime lawyer is being investigated in Manhattan; his son-in-law, Jared Kushner, is facing scrutiny by prosecutors in Brooklyn; his campaign chairman is under indictment; his former national security adviser has pleaded guilty to lying; and a pair of former campaign aides are cooperating with Mr. Mueller. Mr. Mueller, meanwhile, wants to interview Mr. Trump about possible obstruction of justice.”