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Bharara: Raid approved by people Trump picked

Former US attorney Preet Bharara gives his take on Trump slamming the FBI for raiding his personal attorney's office.

Posted: Apr 10, 2018 9:04 PM
Updated: Apr 10, 2018 9:04 PM

The FBI raids on the home, office and hotel room of President Donald Trump's lawyer Michael Cohen were shocking, but in some ways not surprising. I've been saying for a while now that the President's alleged affair with the adult-film star Stephanie Clifford (aka Stormy Daniels) is not what he should be worried about, both because his evangelical base has given him a "mulligan" on his alleged affairs, and because marital infidelity is not by itself an impeachable offense.

What Trump should be worried about is Michael Cohen.

The President and his supporters can keep calling special counsel Robert Mueller's investigation a "witch hunt," but Monday's developments illustrate just how un-witch-hunty Mueller's probe is.

According to reports, the raid was executed under the auspices of the United States Attorney for the Southern District of New York, and would therefore have had to have been authorized by recent Trump appointee Geoffrey Berman. While the reporting isn't crystal clear at this point, most agree this was a referral from the special counsel's office to the Southern District. Which means that Mueller apparently views the alleged hush money payment to Clifford, the now infamously bungled nondisclosure agreement, and any potential legal ramifications thereof (such as possible violation of campaign finance laws, bank fraud, ethical stumblings on the part of Cohen) as tangential to his purview.

As luck would have it, we now have a much clearer sense of what -- exactly -- that purview is, given the recent release of a memo, written by Deputy Attorney General Rod Rosenstein, outlining in explicit detail that which he authorized Robert Mueller and his team to investigate. Former Trump campaign chief Paul Manafort's potential collusion with the Russians was on that list; and while portions of that memo remain redacted from public disclosure, it appears that hush money payments to porn stars didn't make the cut.

In short, while we now know that in the course of their investigation, Mueller and his team have uncovered what they feel is probable cause to investigate potential criminal activity on the part of Michael Cohen, they also believe that such criminal activity does not fall under the mandate of the special counsel's office to prosecute, so they referred the matter to an impartial third-party prosecutor's office.

If this were a witch hunt, no such referral would have been made. Rather, Mueller and his team would have maintained jurisdiction over the matter themselves. But that doesn't mean that the special counsel's office won't reap the benefits of any potential criminal charges brought by the Southern District.

Clifford's lawyer Michael Avenatti, in his tireless and media-saturated pursuit of justice for his client (does this man sleep?) has been gleefully asserting that "Christmas came early" for him and his client.

This is because the President finally broke his uncharacteristic silence on the issue when he recently told reporters on Air Force One that he did not know about the $130,000 payment to Clifford made just days before the 2016 election, and that he didn't know where the money came from.

Well it looks like Christmas came early not only for Avenatti, but for Mueller and his team as well. If the Southern District uncovers evidence of criminal activity on the part of Michael Cohen, that means Mueller and his team can use this as leverage against Cohen in the Russia investigation. There is not a single person better qualified to help the special counsel's office in this regard.

Cohen, Trump's "fixer" for the past decade, knows where the proverbial bodies are buried. Mueller has already used the threat of criminal prosecution as leverage to flip Michael Flynn, Rick Gates, George Papadopoulos, and others who are now cooperating with the investigation. Using leverage of this nature is a tried and true tactic of federal prosecutors, and it works. If Mueller and his team get Cohen to flip, the President has far greater criminal exposure than he ever has previously. And it all started with a porn star and Shark Week.

This piece has been updated to include the new name of the writer's law firm, appearing in the Editor's note.

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