On Monday afternoon, the FBI raided the home, office, and hotel room of President Trump’s longtime personal attorney, Michael Cohen. Cohen is also the national deputy finance chair of the Republican National Committee. According to The Washington Post, Cohen is now “under federal investigation for possible bank fraud, wire fraud and campaign finance violations, according to three people with knowledge of the case.” Documents seized from Cohen include records regarding Cohen’s self-stated $130,000 payment to Trump one-night-stand Stormy Daniels. According to one source, “Investigators took Cohen’s computer, phone and personal financial records, including tax returns, as part of the search of his office at Rockefeller Center, that person said.” Communications between Cohen and Trump were also seized.
Trump immediately termed the situation a “witch hunt” and an “attack on our country in a true sense; it’s an attack on what we all stand for.” He also took to Twitter to state that attorney-client privilege was “dead.”
So, what’s actually going on? Here are eight things you need to know.
1. Trump And Cohen May Have Violated The Law. So, what’s this case even about? Trump allegedly slept with Stormy Daniels back in 2006. Then Cohen paid Daniels $130,000 to keep quiet, according to Cohen himself. According to Cohen, Trump knew nothing about the payment. The settlement agreement contains pseudonyms for Trump and Daniels, and was funneled through an LLC. This could make Cohen’s payment to Daniels an in-kind contribution to the Trump campaign in violation of campaign finance law. Furthermore, if Trump knew about it, that could constitute criminal conspiracy to violate campaign finance law. Former Democratic presidential candidate and senator, John Edwards, was tried on precisely those grounds; a jury split on five counts and acquitted on a sixth before the DOJ decided to drop the case. Ironically, Trump could have avoided all of this by merely paying Daniels directly.
2. Attorney-Client Privilege Doesn’t Apply To Violating The Law With Your Attorney. This is called the “crime-fraud exception” to attorney-client privilege: if you claim privilege in an attempt to cover up a crime, the privilege no longer applies. The legal elements to be fulfilled here include that the client intended to commit a crime, and that the client purposefully communicated with the lawyer to prevent anyone from knowing about the crime.
3. The Raid On Cohen’s Office Was Cleared By A Judge And The Department Of Justice. As Ken White points out, the law is quite strict regarding seizing documents that could be covered by attorney-client privilege. Prosecutors must show that there is no alternative to such a document seizure, and White writes, “The USAM requires such a search warrant to be approved by the U.S. Attorney — the head of the office, a Presidential appointee — and requires ‘consultation’ with the Criminal Division of the U.S. Department of Justice. This is not a couple of rogue AUSAs sneaking in a warrant.” In this case, “the U.S. Attorney’s Office for the Southern District of New York (widely regarded within itself as being the most important and prestigious U.S. Attorney’s Office in the country) secured the search warrants for the FBI. Assuming this report is correct, that means that a very mainstream U.S. Attorney’s Office — not just Special Counsel Robert Mueller’s office — thought that there was enough for a search warrant here.” And a magistrate judge greenlit the warrant as well. Cohen’s office is arguing that he’s cooperated with the authorities all the way, so this warrant is unjustified.
4. There Will Be A Serious Process For Screening The Documents. Again, here’s White: “That process might involve a judge reviewing the materials to separate out what is privileged (or what might fall within an exception to the privilege), or else set up a “dirty team” that does the review but is insulated from the “clean team” running the investigation. Another option is a ‘special master,’ an experienced and qualified third-party attorney to do the review.” Nonetheless, if the FBI now has the full gamut of Cohen documents, they’ll have a lot of interesting reading on their hands.
5. Mueller Isn’t The Only Lawyer On This Case Anymore. Trump is angry about the Mueller investigation, but the Southern District of New York now has charge of the Cohen case, which means that there are two separate investigations apparently taking place. That means that Trump would have to fire the U.S. Attorney for the Southern District of New York if he wanted to hinder the investigation, which would raise the same impeachment-related questions as firing Mueller would — and furthermore, if he doesn’t fire the new U.S. Attorney in SDNY, that slot is filled by the district court. So, who is the U.S. Attorney for SDNY, anyway? It’s Geoffrey Berman, a Trump appointee and Trump donor. [UPDATE: Berman reportedly recused himself from this case, meaning that a deputy approved the raid. This recusal certainly will displease Trump.]
6. What About Attorney General Jeff Sessions? Trump is fighting mad at Sessions for not preventing the investigation from going this far — he thinks if Sessions hadn’t recused himself on Russia, there would be no investigation. That could be right, but Sessions had little choice considering that he had been called before the Senate about his own role in the campaign regarding Russia. Furthermore, Robert Mueller never would have been appointed if Trump hadn’t used deputy attorney general Rod Rosenstein to fire former FBI director James Comey, then stated openly that he fired Comey over Comey’s decisionmaking in the Russia investigation — which forced Rosenstein to appoint a special investigator.
7. The FBI Never Treated Hillary Clinton This Way. This is perfectly obvious. Hillary wasn’t merely allowed to delete 33,000 documents from her computer server three weeks after revelations that she had a private computer server, she was protected by the DOJ and the FBI, which allowed her personal attorney, Cheryl Mills — who was also under investigation — to invoke attorney-client privilege to stop the FBI from investigating Hillary’s email scheme. As Andrew McCarthy of National Review wrote:
The reason was that the Justice Department was allowing Cheryl Mills – a witness, if not a subject, of the investigation – to invoke attorney-client privilege on behalf of Mrs. Clinton in order to thwart the FBI’s attempt to inquire into the procedure used to produce Clinton’s emails to the State Department. Mills was a participant in that procedure – and it is the procedure in which, we now know, well over 30,000 emails were attempted to be destroyed, including several thousand that contained government-related business. … There is no way Mills should have been permitted to participate as a lawyer in the process of producing Clinton’s emails to the State Department nearly two years after they’d both left. I thought it was astonishing that the Justice Department indulged her attorney-client privilege claim, which frustrated the FBI’s ability to question her on a key aspect of the investigation. But it is simply unbelievable to find her turning up at Mrs. Clinton’s interview – participating in the capacity of a lawyer under circumstances where Clinton was being investigated over matters in which Mills participated as a non-lawyer government official.
8. The FBI Makes Mistakes. Everybody seems to think that because the FBI raided Cohen’s office, Cohen is guilty. But the FBI has made mistakes on raids like this before. As Jesse Eisenger of ProPublica writes:
A note of caution on the Michael Cohen news: The FBI screws up a lot. It messed up a raid on Benjamin Wey. Case got thrown out. FBI raided David Ganek's hedge fund, which I'm convinced was an abuse.
— Jesse Eisinger (@eisingerj) April 10, 2018
So, where do we stand? It’s unclear. We don’t have the application for the warrant, so we don’t know what the FBI is looking for. But nothing here is good news for Cohen, who could end up in jail — or Trump, who could end up on the wrong end of a conspiracy charge on campaign finance violations.