The raids on his attorney’s files are extremely dangerous for the president.
ttorney-client privilege is dead,” according to President Donald Trump, who unleashed an angry Twitter tirade this week in response to search warrants executed at the office, home and hotel room of his personal attorney, Michael Cohen. The president is also reportedly considering firing Deputy Attorney General Rod Rosenstein to rein in special counsel Robert Mueller.
Trump is right to be concerned about the search of Cohen’s office, but not because it was improper or a violation of attorney-client privilege. In fact, there are established Justice Department procedures regarding searches of attorney offices. What should concern Trump is that the search of Cohen’s office presumably met the rigorous requirements of those procedures and ultimately resulted in the seizure of communications between Trump and Cohen, according to the Washington Post.
As a starting point, the search of Cohen’s office suggests that he is in very serious legal jeopardy. A federal judge would not have issued the search warrant unless the judge concluded that there was good reason to believe that a crime was committed and that evidence of that crime existed in Cohen’s office. That’s bad news for Cohen, who is reportedly under investigationfor bank fraud, wire fraud and campaign finance violations.
What’s even worse news for Cohen is that federal prosecutors rarely use search warrants in order to obtain documents in white collar investigations. Typically, they use subpoenas that force the defense to review documents and provide only relevant, nonprivileged documents to the government that are organized and formatted so the government can easily access them. (In fact, procedures require prosecutors to “take the least intrusive approach” by considering subpoenas instead of warrants.) If prosecutors resorted to a search warrant in this case, it means they had reason to believe Cohen would not have turned over the appropriate documents via subpoena. In other words, it suggests they have evidence that he tried to obstruct their investigation or mislead investigators.
So instead, federal prosecutors in Manhattan followed Justice Department procedures to obtain a search warrant of Cohen’s office, home and hotel room. To do this, prosecutors would have had to obtain approval from the United States attorney in Manhattan and consult with the Criminal Division of the Justice Department. Rules also obligate prosecutors to establish procedures, such as a “taint team,” to ensure that privileged materials that have been seized aren’t reviewed by investigators.
The Justice Department guidelines also mandate that the search warrant be “drawn as specifically as possible.” This is important because every search warrant lists the “items to be seized.” In the application for the search warrant, the prosecution must establish that there is good reason to believe that those items are evidence of a crime and that those items will be found at the location to be searched. For example, if the prosecutors are investigating a particular bank loan obtained by Cohen, they might have sought to seize documents relating to that loan.
With this in mind, reports that the FBI seized communications between Trump and Cohen should be alarming to Trump because this means that the communications between Trump and Cohen fell within one of the categories of “items to be seized.” To use the prior example, if the FBI sought to obtain documents relating to a bank loan obtained by Cohen, the seized communications between Trump and Cohen were related to the loan that is under investigation.
That is a significant problem for the president—he was communicating with a man under criminal investigation about matters that are under criminal investigation. While some of those communications could be privileged, the “taint team” of attorneys that are walled off from the investigators will determine whether each communication is privileged. Communications that are unrelated to legal advice or are in furtherance of an ongoing crime, are not privileged. Because Cohen’s relationship with Trump is much broader than a typical attorney-client relationship, they may have discussed business matters that are unrelated to legal advice.
Today’s news that the search warrant reportedly sought communications between Trump and others (including Cohen) regarding the suppression of the infamous “Access Hollywood” tape raises the stakes even higher for the president. This means that a federal judge reviewed evidence and concluded that there is good reason to believe that those communications would constitute evidence of a federal crime. That means that Trump’s communications were within the scope of the federal criminal investigation even before the FBI conducted their searches.
It’s never good news for a person under investigation when their lawyer’s office is raided by the FBI. Given Cohen’s loyalty, and Trump’s ability to pardon Cohen for federal offenses, Trump is likely unconcerned that Cohen will “flip” on him. Yet Trump was reportedly in “meltdown” mode yesterday, considering whether to fire Attorney General Sessions, Rosenstein and Mueller. He’s wrong to believe that Mueller has acted improperly, but he’s right to be gravely concerned about his communications with Cohen, which are now in the hands of the FBI. Cohen is in serious legal jeopardy, and his communications could lead Mueller to Trump.
~Renato Mariotti is a former federal prosecutor who handled many obstruction cases. He is now a partner at Thompson Coburn LLP.