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Analysis

What Does the Michael Cohen Raid Mean for the Mueller Investigation?

The Brennan Center’s Michael German, a former FBI agent, answers questions about what the raid means for the Mueller investigation and the broader inquiry into the president and his associates.

April 10, 2018

Federal law enforce­ment agents Monday raided the office and hotel room of Michael Cohen, Pres­id­ent Donald Trump’s personal lawyer. The raid was over­seen by the US Attor­ney’s office in the South­ern District of New York after a refer­ral from the Special Coun­sel Robert Mueller, who is invest­ig­at­ing Russian inter­fer­ence in the 2016 elec­tion.

Michael German, the Bren­nan Center’s senior fellow in the Liberty and National Secur­ity program and a former FBI agent, answered some ques­tions about the devel­op­ment.

What does a raid like this indic­ate?

MG: Clearly it means that there is signi­fic­ant evid­ence of crimin­al­ity, and that there was reason to believe evid­ence of that crimin­al­ity could be located in the office or hotel room of Michael Cohen. This being an atyp­ical invest­ig­a­tion, the stand­ard of review that the FBI and Justice Depart­ment had to go through is much more rigor­ous. That would lead me to believe the level of prob­able cause they have is much more bullet proof than in the case of a normal search warrant.

So does this have to do with the Trump Russia invest­ig­a­tion? Or is it some­thing else?

MG: The press is call­ing this a refer­ral from Robert Mueller, the special coun­sel in the Russia invest­ig­a­tion. And that can have two mean­ings. One is that the special coun­sel referred this evid­ence to the US Attor­ney’s office in the South­ern District of New York because the crim­inal activ­ity it pertains to is not within his juris­dic­tion and is part of a separ­ate crim­inal invest­ig­a­tion. Or he referred it to them so they could get the warrant and then pass relev­ant inform­a­tion back to the special coun­sel. It’s just easier to have agents in New York conduct the raid rather than putting a bunch of DC-based FBI agents on a [train to New York.].

Or it could also be both. There’s a history of alleg­a­tions of shady busi­ness deal­ings with the Trump Organ­iz­a­tion and Michael Cohen. There could be any number of concur­rent invest­ig­a­tions being conduc­ted in New York in close coordin­a­tion with the special coun­sel.

The pres­id­ent tweeted “Attor­ney-client priv­ilege is dead!” Is he right?

MG: Attor­ney client priv­ilege is very specific in what it protects. It protects legal advice from a lawyer to a client, or a client seek­ing advice from a lawyer. Where there are other busi­ness deal­ings that fall outside that rela­tion­ship – a friend­ship that goes beyond priv­ilege – those commu­nic­a­tions aren’t covered. There’s also a crime fraud excep­tion, which says if there’s crim­inal or fraud­u­lent activ­ity, that would be exempt from priv­ilege.

So how does a search like this take place, espe­cially in a lawyer’s office – and espe­cially when the lawyer’s client is the pres­id­ent?

MG: When there’s a search of a lawyer’s office, the Justice Depart­ment sets up a priv­ilege team. Basic­ally, it’s a group of lawyers not involved in the invest­ig­a­tion. They ensure that as the search team finds what’s specified in the search warrant, they review the inform­a­tion to ensure that anything that’s priv­ileged is protec­ted and walled off from the invest­ig­a­tion. In a case like this, you want to err on the side of caution.

In the case of the judge or magis­trate, these folks deal with search warrants daily. Obvi­ously, this is a differ­ent case. I think any judge would be partic­u­larly inquis­it­ive about where [the FBI] planned to search and how they set up the priv­ilege team. The judge knows any evid­ence gathered could be subject to suppres­sion, and he or she will be under a tremend­ous amount of scru­tiny. They’ll be exact­ing in determ­in­ing prob­able cause and what evid­ence can be seized in a search.

Why not just ask for the docu­ments in ques­tion? Is a raid like this stand­ard?

MG: A raid like this indic­ates they may have concerns that evid­ence might be destroyed or other­wise not turned over, even with a lawful request. In a case where you’re deal­ing with drug deal­ers or hard­core crim­in­als, you use a search warrant first because you don’t want to give them a heads up. In a white-collar case, when you’re deal­ing with account­ants and lawyers and the types of people who may seek out legal advice, usually there’s a level of trust that this person isn’t going to do some­thing dumb like destroy evid­ence.

In this case, the raid suggests that perhaps the invest­ig­at­ors got a note from Cohen’s lawyers saying there are no more docu­ments, but another source said there are. Or they figure cooper­a­tion isn’t going to get them what they need, so they’ll have to go and grab it. Most likely, there was a risk that evid­ence might be destroyed.

Does this mean Cohen might confess to wrong­do­ing?

MG: In the end, every smart crim­inal will fold. At some point, the idea of honor among thieves is more tele­vi­sion than real life. For Cohen, he has to decide if he’s the one who’s going to help invest­ig­at­ors get someone more import­ant, or if he’s the one invest­ig­at­ors are after. Usually the incent­ive is: I’m the little guy, he’s the big guy, and I’ll help you get that person. People tend to make decisions to mitig­ate the damage done to them.

What comes next?

MG: That will depend on how much evid­ence they obtained. If there’s a sugges­tion evid­ence was destroyed, that will go quickly and we may see prosec­utors bring charges quickly. Same with false state­ments. It’s easy to make that case. If it’s a more complex case like money laun­der­ing, that could take weeks or months or years.

If this is part of the special coun­sel invest­ig­a­tion, they seem to be focus­ing on wrap­ping up people fairly quickly with plea deals to gain their cooper­a­tion. Since the invest­ig­a­tion pertains to Russi­ans alleged influ­en­cing our elec­tions, the special coun­sel is motiv­ated to get inform­a­tion and cooper­a­tion sooner, espe­cially with another elec­tion coming up. If Mueller can prevent or inter­dict ongo­ing Russian efforts, or locate hidden assets, he’ll want to do that quickly.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

(Image: Getty Images)