Terry H. Schwadron
April 11, 2018
The biggest problem for the rest of us about the FBI’s raid on Michael Cohen is President Trump’s reaction.
The petulant, defensive, crude remarks and threats to fire leaders of the Justice Department, Special Counsel Robert S. Mueller III and upend the process itself represent danger that extends far beyond whether Cohen, the president’s personal attorney, committed criminal acts on behalf of his client. Rather Donald Trump’s renewed calls of “witch hunt,” tweets saying, “attorney-client confidentiality is dead,” and describing the FBI raid as a “break-in” all reflect a belief that the Justice Department is his personal plaything that should not operate independently.
Indeed, White House Press Secretary Sarah Huckabee Sanders said yesterday, “We’ve been advised the president certainly has the power to make that decision.” Sanders had been asked whether Trump could fire Mueller, who answers not to the White House but to deputy attorney general Rod Rosenstein.
Trump — who simultaneously is meeting with his generals to ready launch missiles in Syria — was reacting to a search for documents in at least two hush-money payments to women who claimed sexual contacts with Trump — and in possible bank fraud charges, election violations, among others.
In repeating that the Mueller investigation was putting the country at risk, and that those behind the investigation are “treasonous,” the president proved not only wrong on the facts, but reflecting disdain for the legal principles on which this country is founded. Indeed, Mueller did the opposite of what was accused by identifying evidence that came his way and sending it to the U.S. Attorney in Manhattan for action, a move that eventually resulted in the raids.
It is another instance in which Trump is attempting to put himself above the law. And the issues raised by going after the president’s attorney in particular are defined by the Justice Department as well, requiring extra levels of review before moving ahead. In addition, Cohen could have been adjudged to have put himself in possible legal jeopardy by acting on his own, not necessarily on the specific instructions of his client, The Trump Organization.
Slate Magazinenoted, for example, “It is uncommon, but not unheard of, for a warrant to be obtained to search an attorney’s office for documents. According to USA Today, prosecutors would have obtained approval for the raid from Deputy Atty. Gen. Rod Rosenstein and have had to establish probable cause to a federal magistrate. And, to get a warrant instead of a subpoena, the prosecutors would have also needed to show that there was a risk to giving Cohen ample time and opportunity — that he would destroy evidence, for example. . . Additionally, the documents they would have obtained would have to relate to Cohen’s possible crimes, not his client’s.”
The Justice Department has an intricate review process to play out when attorneys are involved. The U.S. Attorney (in this case, a Trump appointee), Rosenstein and a federal magistrate all would have sign off on whatever evidence was presented to justify a search warrant. If the documents indicated evidence of a crime committed both by Cohen and his client, working together, then attorney-client privilege might not protect them.”
Trump is fond of repeating that there has been no finding of “collusion” between the Trump campaign and various Russians. Skipping the fact that there is no such criminal charge, the Mueller investigation has filed criminal charges for lying and various financial allegations against at least five people in Trump’s circles, with the investigation widening to other financial issues. This week, the New York Times reported that
Robert Mueller is investigating a $150,000 donation to Trump’s foundation by a Ukrainian steel magnate. The donation was made by Ukrainian billionaire Victor Pinchuk in return for the then-GOP candidate delivering a 20-minute address via video link to a conference in Kiev. The timing of the transaction in September, 2015 raises questions about whether the money was, in essence, a thinly veiled alternative campaign donation in an attempt to curry favor with Trump.
The Wall Street Journal had disclosed first the efforts by Michael Cohen, 51, a “lawyer handling small-time car-accident cases inside a taxi garage in Queens, N.Y. until he joined the Trump Organization, to settle the Stormy Daniels matter by paying her $130,000 for her silence. He developed a reputation as Trump’s “fix-it guy,” who told the Journal in January, “Anything that he needs to be done, any issues that concern (Trump), I handle.” Cohen, a martial arts fan and sometimes participant, has had various business raging from taxi cabs to investments in buildings.
The president’s outbursts on the Cohen matter also seem to illustrate how critical they may be. Cohen may be in legal jeopardy, but Trump himself could be more vulnerable if any eventual charges against Cohen are used to pressure him into sharing other information about the president.
Politico outlined that the evidence sought by investigators reportedly relating to bank fraud and campaign finance violations suggest that Cohen used a home equity credit line to borrow the $130,000 he paid Stormy Daniels for her silence just weeks before the 2016 election. If Cohen lied to obtain credit from a federally insured financial institution, that is a felonypunishable by up to 30 years’ imprisonment. And because the payment was likely an in-kind contribution to the Trump campaign, it could constitute a willful violation of campaign contribution limits, a separate felony punishable by up to five years’ imprisonment.
While the guilty pleas of Trump campaign adviser George Papadopoulos, deputy campaign chair Rick Gates, and former national security adviser Michael Flynn were all significant, none of them directly jeopardized the president the way a Cohen deal would, Poltiico said. If the FBI seized evidence showing that Trump directed Cohen’s payment to Daniels, Trump may also have committed a felony violation of campaign finance law. If Cohen and Trump worked together to come up with the scheme, they might also both be guilty of conspiring to commit a campaign finance violation. And if Trump (notwithstanding his recent denial) actually knew that he was the beneficiary of the nondisclosure agreement, he might be guilty of a separate offense — failing to report that asset on his personal financial disclosure form, said Politico.
Perhaps we should be hearing a bit less petulance in Trumps remarks, and a little more fear about what a raid might actually unearth.
Now, that is a reason to fear an independent law enforcement agency.