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Raiding Trump lawyer Michael Cohen is a stunning move by federal prosecutors

The search warrant raid on the off...

Posted: Apr 10, 2018 11:22 AM
Updated: Apr 10, 2018 11:22 AM

The search warrant raid on the office, home and hotel room of Michael Cohen, the personal counsel to the President, is an extraordinarily unusual and highly aggressive move by federal prosecutors. It sends a strong message that Special Counsel Robert Mueller's investigation has uncovered a lead suggesting criminality related to Cohen's law office probably unrelated to Mueller's Russia election meddling probe.

Mueller has now developed evidence sufficient to persuade a federal judge that there is "probable cause" to believe that Cohen has in his possession evidence of a crime. Most experienced criminal lawyers would likely suspect that the Stormy Daniels $130,000 "hush money" payoff is the primary clue that sparked a closer look at Cohen's law office.

Everything about the payment looks unusual, from Cohen's claim that he used a personal line of credit on his house to fund the payment to statements by both Cohen and the President that Mr. Trump knew nothing about the payment. Lawyers don't customarily fund the contractual obligations of their clients as such actions can, depending on the circumstances, constitute unethical conduct by the attorney fronting or "gifting" the funds.

In addition, the timing of the $130,000 payment so close to the presidential election may suggest an unreported and illegal campaign contribution. How the money is treated for tax purposes may also trigger other legal concerns. Payments to people who claim to have had affairs with public figures are not currently tax deductible under the IRS Code even if your primary residences are Trump Tower and the White House.

The search warrants may uncover evidence of prior payoffs and the feds will have a strong interest in where the money came from and whether it was deducted as a Trump or Cohen business expense. Of course the search may also exonerate both men of any criminal conduct.

Cohen may have other problems. It is unethical for an attorney to act on behalf of a client without consulting the client. If Trump was not advised by Cohen that he had negotiated a $130,000 non-disclosure agreement with a porn actress prohibiting her from revealing anything suggesting an intimate relationship with Trump one month before the presidential election, he certainly should have been.

Cohen and the President have left room in their various accounts of the Daniels payment for Cohen to claim that as a long-time adviser, attorney and friend of the President he had been given general authority to act on behalf of Trump. That claim may get Cohen off the ethics hook but the whole Daniels "hush money" and Karen McDougal "catch and kill" deals look sleazy. It is hardly surprising that prosecutors would want to take a closer look.

If the crime were directly related to Mueller's "Russia collusion" probe as the President is fond of describing his investigation, most of the heavy lifting regarding procurement and execution of the warrant would likely have been handled by Mueller's office.

Instead initial reports suggest the search warrant was largely handled by the office of US Attorney for the Southern District of New York, Geoffrey Berman, a recent Trump appointee. Berman is also the former law partner of Rudolph Giuliani, one of Trump's early supporters and advisers.

The fact that the search warrant was obtained and executed by the US Attorney for the Southern District rather than by the Office of Special Counsel Mueller clearly indicates that the special counsel was well aware that he was proceeding in a new direction that could subject him to criticism that he was exceeding his mandate.

It is also clear that if a prosecutor becomes aware of the commission of any crime, he has the lawful duty to follow the evidence. Mueller (or his supervisor Deputy Attorney General Rod Rosenstein) appears to have acted sensibly in referring the matter to the leading federal law enforcement official locally, the Manhattan based US Attorney, for proper follow-up.

This seizure of evidence pursuant to search warrant on an attorney's office is a highly unusual and dangerous maneuver by any prosecutor. The attorney-client privilege protects most attorney records, and the courts, even when issuing a search warrant directed at an attorney's office, require protection of legitimately "privileged" documents. Failure to protect such information can lead to court sanctions or even dismissal of a case.

The FBI and Justice Department use lawyers and investigators walled off from the primary investigation to sift through the documents to prepare a "privilege log" for later submission to the court. At least in theory these "taint" teams remove any legitimately privileged items from examination by the primary investigators putting the case together. Or at least that is how it is supposed to work, though some of us who are criminal defense lawyers may be skeptical.

There remains a very important exception to the attorney-client privilege called the "crime-fraud" exception. If the attorney and the client are conspiring to commit a crime and use the attorney-client privilege to cover up the conspiracy, under law the privilege is automatically waived.

New York federal prosecutors will be carefully sifting through Cohen's records in search of any evidence that he conspired with his primary client, the President of the United States, to commit a crime. And the one thing we know for sure, a federal judge has reviewed the warrant application and has determined that there is "probable cause" to believe that Cohen's law office records contain evidence of some kind of a serious crime: a crime so serious that this judge permitted a raid on the office of the President's personal lawyer.

Something is up and President Trump's latest musings about firing Mueller won't make it go away. The new cop on this beat is Trump's own appointee, US Attorney Berman, who like all federal prosecutors is ethically required to follow the evidence of a crime wherever it leads even if not in the direction of Russia...but instead into Trump Tower.

Minnesota Coronavirus Cases

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Cases: 604608

Reported Deaths: 7642
CountyCasesDeaths
Hennepin1249941780
Ramsey52516897
Dakota46848471
Anoka42782458
Washington27433291
Stearns22559225
St. Louis18142313
Scott17552137
Wright16382149
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Carver1067548
Clay826492
Rice8203110
Blue Earth762644
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Douglas475681
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Winona461351
Itasca459963
Isanti440164
McLeod430861
Morrison424862
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Nobles407550
Steele397816
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Becker386755
Lyon363853
Carlton353056
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Cases: 371146

Reported Deaths: 6053
CountyCasesDeaths
Polk58273640
Linn21228339
Scott20310248
Black Hawk16167312
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Johnson1462385
Dubuque13512211
Dallas1128999
Pottawattamie11229174
Story1071648
Warren584091
Clinton561593
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Sioux517674
Webster516094
Muscatine4884106
Marshall486876
Des Moines467572
Wapello4338122
Buena Vista426940
Jasper421172
Plymouth403181
Lee382356
Marion366076
Jones301057
Henry294537
Bremer288661
Carroll287152
Boone268634
Crawford268140
Benton259955
Washington257351
Dickinson249344
Mahaska232751
Jackson225242
Clay216727
Kossuth216166
Tama212071
Delaware211143
Winneshiek198835
Page194522
Buchanan194133
Cedar192323
Hardin187544
Fayette186743
Wright186040
Hamilton181951
Harrison180073
Clayton171157
Butler166335
Madison164619
Mills163724
Floyd163442
Cherokee159338
Lyon158841
Poweshiek157136
Allamakee152852
Hancock150334
Iowa149824
Winnebago144531
Cass139255
Calhoun138913
Grundy137333
Emmet135841
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Shelby131737
Sac130920
Union130035
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Guthrie123332
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Palo Alto113623
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Unassigned9530
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Davis85225
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Osceola78916
Greene78011
Lucas77923
Worth7618
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