Flipping the fixer.
We recognize that to many Americans the questions posed in our header represent a difference without distinction. That is, you get the facts and you get Trump. Maybe so. But for the record, we assume Special Counsel Robert Mueller is on a mission to get facts rather than just to get Trump. Everything we know about Robert Mueller suggests he is a brilliant, honest, public servant who has consistently served his country with distinction. Furthermore, no one will have access to the files and computers seized at Cohen’s office, hotel room or home until a disinterested panel of justice department attorneys have gone through everything that has been seized to determine if anything found is covered by attorney-client privilege.
Specifically, The U.S. Attorney would have to meet six conditions delineated in the Attorney’s Manual for Searches of Premises of Subject Attorneys.
Before obtaining a search warrant, investigators had to try to obtain the evidence in another way, such as by subpoena.
- The authorization for the warrant had to come from either the U.S. attorney or an assistant attorney general. (Rosenstein is deputy attorney general, a higher position than assistant attorney general.)
- The prosecutor had to confer with the criminal division of the department before seeking the warrant.
- The team conducting the search had to “employ adequate precautions” to ensure that they weren’t improperly viewing privileged communications between Cohen and his clients.
- The search team would have included a “privilege team,” including lawyers and agents not working the case, which would work to ensure that investigators conducting the search didn’t see privileged communications.
- The investigators had to develop a review process for the seized material.
So, in a nutshell, any advice that the attorney has given his client is, essentially, privileged. And there’s the rub. We would consider it highly doubtful that Trump turns to Cohen for legal advice. Trump has had, and does have, access to the top attorneys in the nation and Michael Cohen is not one of them. He brings to mind Better Call Saul rather than, say, Clarence Darrow.
One thing that clearly isn’t covered by attorney-client privilege is conspiring to break the law. However, discussion of a proposed settlement agreement would generally be covered. Much of the speculation being bandied about appears to be focused on the payment to porn-star Stormy Daniels in return for her silence. We doubt that Stormy is the focus of the search warrants. Should the Mueller investigation devolve into efforts to determine whether Cohen broke the law as a fixer trying to hide Trump’s picadillo’s, it becomes a Get Trump effort more than a Get Facts effort. Then again, Ken Star had no problem having his investigation devolve from a shady real estate deal in Arkansas into an examination of an intern’s gown.
There is also speculation that Cohen traveled surreptitiously to Prague to conspire with the Russians. This could be more substantive, but it doesn’t really pass the smell test either. Finally, we have read about Cohen’s investments in taxi medallions in New York City. We don’t see where that rises to a level about which Mueller would care very much.
We trust that Mueller believes there was evidence of a serious crime either on Cohen’s computer or in Cohen’s files. We assume Mueller has Cohen in his crosshairs because he believes Cohen knows where all the proverbial bodies are buried. What we do think is that Mueller is looking for any infraction that carries with it stiff prison time as punishment. We’ve read that Cohen “loves Trump” and would do anything to protect him. We doubt that. If Mueller comes up with anything that could result in real prison time for Cohen, we suspect Cohen would sing like a canary to avoid serious incarceration. And, more important, if what Mueller believes is buried in Cohen’s computers or files is evidence of violations of New York State law, as compared to federal law, there would be no relief through a Presidential pardon.
Many prominent attorneys have weighed in on the propriety of raiding an attorney’s office. Alan Dershowitz says that if the search warrants relate to the Stormy Daniels affair, then the raid is “way disproportionate.” We agree. That would make this development simply a Get Trump exercise.
On the other hand, high profile defense attorney Nicholas Gravante of Boies Shiller and Flexner notes, “it’s highly unusual for a lawyer’s office to be raided and documents seized. It’s more common in cases involving organized crime and drug cartels, but not unprecedented in a white-collar matter such as this. If a CEO of a large company and his attorney were under investigation for the same potential violations of law, I’m doubtful that similar measures as extreme as these would have been deployed. You’re dealing with an attorney who hasn’t previously been convicted of a crime or even had ethical sanctions imposed against him, which makes this all the more unusual.
The fact that such extreme action was taken may indicate that there is more information in the possession of law enforcement that made this decision than the public is aware of.”
We suspect attorney Gravante has it right.