Although a search of a private attorney’s office like the raid the FBI conducted on the office of President Donald Trump’s lawyer Michael Cohen is highly uncommon, legal experts see little reason to believe that attorney-client privilege is, as the president claimed on Twitter, “dead.”
“A TOTAL WITCH-HUNT!!!” Trump tweeted early Tuesday, the morning after the FBI and the Manhattan federal prosecutor’s office executed search warrants on Cohen’s law office and a room at the Loews Regency Hotel on Park Avenue where he has been staying.
According to the Washington Post, Cohen is under federal investigation for possible campaign finance violations, bank fraud, and wire fraud. A spokesman for Cohen said in a statement that the raid was “completely inappropriate and unnecessary” because he has cooperated with all government entities and the search resulted in the seizure of privileged communications.
In an interview with CNN Tuesday, Cohen said the raids were "upsetting to say the least" and he is worried about them, but he praised the agents who conducted the searches for their professionalism.
"I am unhappy to have my personal residence and office raided. But I will tell you that members of the FBI that conducted the search and seizure were all extremely professional, courteous and respectful. And I thanked them at the conclusion," Cohen told Don Lemon.
Trump’s tweets followed an on-camera tirade Monday where the president described the Cohen searches as a “disgraceful situation” and blasted senior leadership of his own Justice Department, attorneys working with special counsel Robert Mueller, and former Democratic presidential nominee Hillary Clinton.
“It’s a disgrace, it’s frankly a real disgrace,” Trump said. “It’s an attack on our country in a true sense. It’s an attack on what we all stand for. So when I saw this and when I heard it — I heard it like you did — I said that is really now in a whole new level of unfairness.”
Asked Tuesday what the president meant by that, White House Press Secretary Sarah Sanders told reporters Trump believes it is clear that Mueller’s investigation “has gone too far.”
Despite the president’s apparent anger at Mueller, the special counsel’s office played a tangential role in the raids. According to Cohen’s attorney, the searches were only partly motivated by a referral from Mueller’s team. The U.S. Attorney’s Office for the Southern District of New York obtained the warrant from a federal judge and executed the searches.
“It’s pretty unusual,” said former federal prosecutor Seth Waxman of seeking a warrant for a practicing attorney’s office. “In my 13 years, I probably did it three or four times.”
Much remains unknown about the warrant, which has not been made public, but some new details did emerge Tuesday.
According to the New York Times, the search warrant for Cohen’s office sought information regarding the $130,000 Cohen has acknowledged paying to Stephanie Clifford—a porn star who goes by the name Stormy Daniels—to stop her from speaking publicly about an alleged affair with Trump weeks before the election. Investigators were also seeking evidence related to $150,000 paid by American Media Inc.—the parent company of the National Enquirer—to Karen MacDougal, an ex-Playboy model who also claimed an affair with Trump.
The FBI has separately requested records on the payment to Daniels from the Trump Organization, the Wall Street Journal revealed. Cohen has maintained that his payment to Daniels had nothing to do with the Trump campaign or Trump’s company.
CNN reported Tuesday that the Cohen search warrant also targeted information related to New York City taxi medallions owned by Cohen and his other investments.
Deputy Attorney General Rod Rosenstein reportedly signed off on the warrant personally. The Trump-appointed interim U.S. attorney for the Southern District of New York, Geoffrey Berman, has recused himself from the case, according to ABC News.
Though the evidence used to obtain the warrant has not been released, legal experts say prosecutors would likely need to clear a higher bar for the Department of Justice and a federal magistrate to sign off on a search of the office of the personal attorney to the president of the United States than for a typical search warrant.
“As a legal matter, it’s the same. As a practical matter, it’s higher,” Waxman said. “Any warrant is a probable cause standard…. Practically speaking, when it comes to an attorney, you as a prosecutor are going to want significantly greater evidence.”
Before taking a warrant application to a judge, investigators would need to submit it to the DOJ’s Policy and Statutory Enforcement Unit for review. They would then need express approval from the U.S. attorney for the relevant district or a pertinent assistant attorney general. In this case, that was reportedly Rosenstein himself.
“You have to come to that unit with really substantial evidence,” Waxman said. “The DOJ is very hesitant to go after attorneys in the same way they’re hesitant to go after the media…. If you go in there with ‘he said, she said’ or flimsy evidence, you will never get close to getting that application approved.”
The DOJ’s manual for U.S. attorneys states that prosecutors should take “the least intrusive approach consistent with vigorous and effective law enforcement” when seeking evidence from an active attorney. They should seek the information from another source or through a subpoena first unless doing so could compromise prosecution or result in obstruction or destruction of evidence.
A Twitter account apparently belonging to George Conway, an attorney and husband of Trump counsellor Kellyanne Conway, responded to the president's tweet about the death of attorney-client privilege with a link to the section of the manual pertaining to searches of the premises of attorneys who are subjects of investigations.
"Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search," the manual states.
“Normally, you would proceed voluntarily. Normally, you would ask for a subpoena…. There has to be some extraordinary circumstances described in the affidavit,” said former FBI executive David Gomez, who could only recall a few times in his 28-year career that he saw the tactic used.
Given that investigators proceeded in seeking the warrant and convinced Rosenstein to approve it, he expects they have specific allegations of a crime from a reliable source.
“They all understand the law and they understand the grave consequences of raiding an attorney’s office and the potential violation of attorney-client privilege,” Gomez said.
Those consequences, according to Waxman, could include any future evidence even remotely connected to the privileged material being thrown out as fruit of the poisonous tree or any investigators who viewed that material being removed from the case.
“That is an absolute mess,” he said. “No prosecutor would want to come anywhere near that.”
The president and some of his allies have taken the search itself as an affront to attorney-client privilege. Trump’s tweet Tuesday echoed the sentiments of attorney Alan Dershowitz, who supported Clinton in 2016 but has become a vocal defender of the president against what he sees as abuses of power by the special counsel.
"This is a very dangerous day today for lawyer-client relations," Dershowitz said on Fox News Monday.
On Fox News Tuesday, Sen. Rand Paul, R-Ky., argued Mueller’s probe has strayed too far from its stated purpose.
"Going after someone's personal attorney is a great overstep, I think, in the authority of the prosecutor. This is why I have opposed having special prosecutors for almost anything," Paul said.
Others are untroubled by the search, assuming prosecutors will follow standard procedures to prevent anyone on the team investigating Cohen from viewing any materials covered by privilege.
The evidence will likely be reviewed by a so-called “taint team” completely separate from the prosecutors and agents conducting the Cohen investigation. That team will determine what material is subject to attorney-client privilege, and they may present evidence they believe to be exempt from the privilege to a judge before handing it off to the Cohen investigators.
“The only documents that are then turned over to the investigative team are the ones that are not under attorney-client privilege,” Gomez said.
Most records of Cohen’s work for Trump would presumably be withheld because they are protected by privilege. However, there are exceptions that could enable prosecutors to use Cohen’s records and even some of his communications with Trump as evidence in criminal proceedings.
The primary concern for Trump would be the crime-fraud exception, which exempts communications between an attorney and client from the privilege if they are in furtherance of a current or planned crime.
“Privilege does not cover criminal conduct,” Gomez said.
Also, Cohen and Trump have repeatedly claimed the president knew nothing about the payment to Daniels. If true, this raises questions about whether Cohen’s actions were within the scope of his role as Trump’s legal representative at the time.
In addition to the potential legal problems the Cohen searches portend for the president, they also present political challenges.
“Potentially, there is a political problem because he might choose to make this action by the Southern District and the FBI a red line,” said Glenn Altschuler, a professor of American studies at Cornell University. “If so, and his rather long monologue yesterday indicates how upset he is, then it may result in shoes dropping that will exacerbate what is already a fraught situation.”
Trump’s suggestion Monday that he is considering firing Mueller drew sharp rebukes from Democrats and some Republicans. It also revived calls for legislation to insulate Mueller from executive action.
“President Trump said the raid was a disgrace,” Senate Minority Leader Chuck Schumer, D-N.Y., said in a floor speech Tuesday. “I say to the president, Mr. President, you have it wrong. Interfering with the investigation would be a disgrace. Calling it an attack on our country is a disgrace.”
Many experts believe the president lacks the authority to fire Mueller directly—though the White House said Tuesday he disagrees—but he can order Rosenstein to do it and fire Rosenstein if he refuses. Rep. Matt Gaetz, R-Fla., suggested on Fox News that the president would be justified at this point in firing both Rosenstein and Attorney General Jeff Sessions.
Appearing on Fox Business, Sen. Chuck Grassley, R-Iowa, warned Trump it would be “suicide” to fire Mueller, but he added that he believes the special counsel’s investigation is “coming to a dead end.”
“Maybe Mueller would appreciate being fired so he would have an excuse for getting out of it, and the Democrats would have a good issue in this upcoming election,” Grassley said.
Trump impulsively forcing out Mueller would strengthen Democrats’ case for the midterms, according to Altschuler, because it would reinforce their argument that a Democratic Congress is needed to serve as a check on Trump’s destructive behavior.
“If there were to be a firing, I think it’s extremely likely that it would improve, perhaps significantly, the prospects of the Democrats to retake control over the House of Representatives,” he said.
However, Trump also has a tendency to leave open the possibility of a controversial action in public comments and never follow through.
“We know from past experience, ‘we’ll see’ sometimes is followed by an action and sometimes it isn’t…,” Altschuler said. “To date, the ‘we’ll sees’ have served whatever purpose they’ve served and the president has moved on, and I would not be surprised if that were the case this time.”