The FBI raid on Michael Cohen’s office and hotel is not a Trump v. Mueller thing, although that's what the White House would have you believe. Instead, it’s a reminder of the deplorable character of so many of the people with whom the president has chosen to associate himself over the years. After Monday’s raid, here are four central questions to keep in mind.
Will Trump fire Mueller?
If Trump fires Special Counsel Robert Mueller for this, why wouldn’t he fire Deputy A.G. Rod Rosenstein, who authorized the searches? And if he dismisses Rosenstein, why wouldn’t he fire the federal prosecutors in the U.S. Attorney’s Office in New York, the ones who also signed off on the raids? That’s a group, not for nothing, that includes the U.S. Attorney-nominee, Republican Geoffrey Berman, appointed by Attorney General Jeff Sessions, the president’s recuser-in-chief. While Trump’s at it, why not then fire Sessions?
All of those mentioned above (save Sessions) bear more blame than Robert Mueller for Cohen’s miserable Monday. One or more of these firings would, in a sane world, rouse congressional Republicans from their tax-law-infused slumber. Which is why the president needs to turn Monday’s raids into another example of what he claims is Mueller’s crusade against him, and why he had the temerity to say the FBI searches were "an attack on America." That’s an argument designed to fly in the deep recesses of Fox News and among Vichy Republicans, but nowhere else.
Bank fraud? Campaign finance violations? Money laundering? What’s shocking about the feds’ raid on Trump’s favorite lawyer is how utterly unsurprising it is, given what we know about Trump and Cohen. They deserve each other, this client and this attorney, and now the attorney is in big trouble, and so his client. There is enough potential criminal conduct swirling around the president right now without the special counsel’s looming report.
Who really ordered the FBI raids?
The most important thing to say about what happened Monday is that it would not have happened – it could not have happened – unless a lot of smart lawyers and public officials at the Justice Department signed off on it. What happened, evidently, is that Mueller came to Deputy Attorney General Rod Rosenstein and said, essentially: We’ve uncovered evidence and information that leads us to suspect that Cohen may have committed crimes, but those crimes are beyond the scope of our special counsel mandate.
Rosenstein responded to this “referral” by undertaking an independent-of-Mueller investigation through the Justice Department and the U.S. Attorney’s Office for the Southern District of New York. That review had to comply with standing DOJ procedures and guidelines designed to handle cases like this, where attorney-client privileged matters may be the subject of a federal search. All of this means that Rosenstein and company were convinced on their own that the search – and not a subpoena – was warranted.
Rosenstein and others had to have been convinced that there was probable cause to believe a crime may have been committed. And not just convinced on their own, but confident enough in their own convictions to have taken their request to a federal judge who signed off on a search warrant. Trump v. Mueller? If this is, as the president said, another witch hunt, there are an awful lot of accomplished, respected hunters coming for their witch with the full weight of federal law and procedure on their side.
Attorney–client privilege is dead!— Donald J. Trump (@realDonaldTrump) April 10, 2018
What about attorney-client privilege?
Our justice system considers the attorney-client privilege vital – even when both the attorney and the client act suspiciously. But the law also recognizes that sometimes attorneys commit crimes either on behalf of their clients or on their own. And when that happens, police and prosecutors are allowed, with limitations, to breach the attorney-client privilege. It doesn’t happen often. But it happens often enough and the legal standards for it, as noted above, are designed to make it relatively rare.
If or when Cohen is charged, his attorneys will no doubt try to suppress whatever evidence was gleaned from Monday’s searches, and they may make compelling arguments based on the way the feds breached said privilege. But that fight won’t determine the outcome of United States v. Cohen, whenever that comes our way. You lay down with dogs, you wake up with fleas. Maybe Cohen is the flea and Trump is the dog. Or perhaps it’s vice versa. Either way, it’s already been a long week for the nation’s most dubious lawyer-and-client combo.
Will Michael Cohen be charged?
If Cohen is surprised that the FBI came knocking, he’s even more of a fool than the media makes him out to be. If the president is surprised that Cohen’s shenanigans in dealing with Stormy Daniels wouldn’t rebound in the way they just have, he’s in for more surprises over the coming weeks and months. Mueller doesn’t have to bring obstruction charges against President Trump, or submit a report to Congress recommending impeachment, to grievously wound him. There is enough corruption surrounding the president and his administration that his men can be picked off in this fashion, one white-collar case at a time.
This is especially true so long as Rosenstein continues to show that he has Mueller’s back. The dawning of that reality at the White House is likely what caused Trump to erupt in fury late Monday. But the truth is that Rosenstein’s follow-up to Mueller’s "referral" here is mostly a sign of how strong the evidence must be against Cohen. I continue to believe that Rosenstein is going to sign off on Mueller actions so long as those actions aren’t considered "close calls." The prosecutions of Manafort and Flynn, for example, aren’t what any reasonable person would consider "close" charging calls. And neither, necessarily, would be a case against Cohen. This isn’t the end of the beginning for a lot of these folks. It could be the beginning of the end.
President Trump talks the possibility of firing Special Counsel Robert Mueller in a recent press conference. Watch below.