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)