Photo: Kathy Willens/AP
Photo: Kathy Willens/AP

Opinion: Now, we await Trump’s eruption

The office and home of Michael Cohen, personal attorney to President Donald Trump, have been raided by the FBI.

That, ladies and gentlemen, is big news.

According to the New York Times, which broke the story, one area of interest to the FBI was Cohen’s role in payments to porn star Stormy Daniels, aka Stephanie Clifford. Agents reportedly seized emails, tax documents and business records from Cohen, including “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.”

As the raids demonstrate, attorney-client privilege is not absolute. Under what is known as the crime-fraud exception, prosecutors can ask a judge for permission to seize material and force a lawyer’s testimony after showing that the client had used the attorney to advance a crime or fraud.

Earlier in his investigation, for example, special counsel Robert Mueller used the crime-fraud exception to force grand-jury testimony from a lawyer representing Paul Manafort and Rick Gates.  As the judge in that case ruled, “When a person uses the attorney-client relationship to further a criminal scheme, the law is well established that a claim of attorney-client or work-product privilege must yield to the grand jury’s investigatory needs.”

Such exceptions are rare, however. Judges asked to approve such an exception and grant a search warrant must be convinced of a prima facie case that a crime has occurred and that the lawyer had somehow been involved in the actual commission of that crime. That’s always a high bar for prosecutors to clear, and it no doubt becomes even higher when the client in question is the president of the United States.

In other words, this is no fishing expedition. The FBI and Department of Justice would never have even sought such a warrant in such a high-profile, high-stakes case unless Deputy Attorney General Rod J. Rosenstein and other top officials in the agency were absolutely convinced that their request would be approved and that it would produce results. Likewise, no federal judge would sign onto such a warrant without a similarly high degree of confidence in the facts presented in court.

The warrants were sought and the raids carried out by the U.S. attorney for the Southern District of New York, not by Mueller’s office. According to the Times, Cohen’s attorneys were told afterward that Mueller had referred information to the U.S. attorney’s office in New York supporting the raids. That suggests that the raid may not be directly connected to the investigation into Russian collusion. The Washington Post reports that the warrant alleges possible bank fraud, wire fraud and campaign finance violations.

What happens next?

We won’t know for weeks or months, if ever, what material the FBI gathered in these raids. But we will know pretty soon how Trump responds to learning that the offices and home of his longtime personal lawyer have been raided, that his personal legal documents and tax documents are now in the hands of the FBI, that Cohen himself is now clearly at serious risk of felony prosecution, and that Cohen will now face pressure to testify about any possible role in the Russia collusion probe.

Most important, Trump also now knows that his own months-long campaign to try to intimidate the FBI, Mueller and the Justice Department has failed, and he is not at all happy about it. In a remarkable statement this evening, Trump attacked what he called a “disgraceful situation,” “a total witchhunt,” “an attack on our country in a true sense.” He complained about “a whole new level of unfairness” perpetrated by “the most conflicted group of people I’ve ever seen.”

However, the primary target of Trump’s anger was once again Attorney General Jeff Sessions, who months ago decided to recuse himself from overseeing the Russia investigation and by doing so surrendered his ability to protect Trump.  Trump’s anger at that decision has clearly not abated, and I wouldn’t be surprised if Session is gone by the end of the week and replaced by someone who does have that authority and is willing to use it.

That’s when the fun starts.

About the Author

Jay Bookman
Jay Bookman
Jay Bookman generally writes about government and politics, with an occasional foray into other aspects of life as time, space and opportunity allow.Jay...