Why the FBI Raid on Michael Cohen's Office Is a "Big Deal" (Updated)

It's easy to feel that if everything is a big "breaking" story, then nothing is -- but this time the news channel chryons might be correct.

|The Volokh Conspiracy |

It's not every day that the FBI raids an attorney's office, home, and hotel room, seizing documents, computers, phones and other materials. It should thus go without saying that it's not every day that the FBI conducts such a raid on the President's private attorney. Yet that's where we are.

As Popehat's Ken White explains, "this is a big deal." Raids of attorney offices are highly disfavored. (See the relevant provisions of the U.S. Attorneys' Manual.) Approval for such raids is not easily obtained. In order to justify such a step, not only do investigators have to make a showing that crimes likely occurred, they also have to provide reasons why other methods of obtaining information—such as subpoenas for documents and the like—are liikely to be insufficient. Magistrate judges also don't approve these sorts of things lightly.

Although the search warrant application is likely under seal, those executing the warrant will have provided Michael Cohen with a copy. The warrant will identify which laws investigators believe the target may have violated, and the items authorized to be seized. As White notes, if Cohen releases a copy (or it's leaked), this should provide some further detail about what sorts of crimes are under investigation. (It's also possible that news reports detailing what investigators were allegedly pursuing were based on such information.)

While the information that led to this raid may have come from Special Counsel Robert Mueller's investigation, the warrant was obtained by the U.S. Attorney's office for the Southern District of New York. There's nothing unusual or untoward here. When an prosecutor investigating potential crime A finds evidence of crime B, it is common to hand off such information to the office that would be responsible for investigating the latter, particularly if (as seems likely here) crime B lies beyond the scope of the discovering prosecutor's mandate.

The involvement of the SDNY U.S. Attorney's office also creates an interesting wrinkle. Chris Geidner explains:

The US attorney for the Southern District of New York is Geoffrey Berman, who was the White House's pick for the important job — but he is not there through the traditional process of a presidential nomination and Senate approval.

Instead, Berman was one of several people Sessions appointed on Jan. 3 to US attorney positions under a law that allows Sessions to appoint US attorneys on an interim basis. Berman can serve in the position on that authority until May 3. A Trump supporter and former law partner at Rudy Giuliani's firm, Berman reportedly met with Trump about the role — but he was never nominated for it, a move that could have faced opposition from the Senate's Democratic leader, Sen. Chuck Schumer of New York.

After May 3, the district court for the district — so, the Southern District of New York — has the authority under the law to appoint a US attorney until the vacancy is filled. That appointment could, in theory, be Berman — but there is no guarantee that it would be. Trump, meanwhile, is yet to announce a nominee for the position.

A few wrinkles. First, it's not yet clear Berman was involved. It's possible he may have recused himself given he is awaiting a possible permanent appointment from the President.

Second, if Berman's current acting appointment lapses, having the district court appoint an acting U.S. Attorney might raise separation of powers questions. Such an appointment would seem to comply with Morrison v. Olson. In Morrison, the Supreme Court upheld the constitutionality of the Independent Counsel law, under which the IC was appointed by a three-judge panel. If that appointment of the IC was kosher, there's a very strong argument a similar appointment of a U.S. Attorney is as well.

But is it likely courts would follow Morrison's logic? Justice Scalia wrote an impassioned dissent in Morrison that many believe has been vindicated over time, and there are questions whether it remains good law. As Justice Elena Kagan remarked, Scalia's opinion is "one of the greatest dissents ever written and every year it gets better." So, if the district court names the new US Attorney, we could see serious constitutional challenges to the appointment.

It should go without saying, but stay tuned.

UPDATE: According to this report, Berman recused from this matter was not involved with submission of the warrant application.

NEXT: Brickbat: Too Close for Comfort

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  1. Even if it’s true that magistrates normally don’t approve these warrants lightly, the judiciary is clearly operating under a separate set of rules for Trump, so I wouldn’t put much stock in this.

    1. The disparate administration of justice toward Trump and Clinton is appalling.

      1. Or maybe all the ‘criminality’ Hillary’s accused in the media doesn’t hold up when the time comes to prosecute.

        This is Trump’s FBI. Don’t you think that if there was any there there it’d have happened by now?

        1. You continue with blatant dishonesty. Classified material within private containers, a server, is a known crime. It has been prosecuted many times. Hillarys lawyers were never raiders. Her priveledged communications never asked for. She was even granted the ability of possible suspects to be her lawyer, Mills, and sit in on her interview.

          W Trump we have a novel new theory of illegal campaign contribution never tried prior. We have the taking of much lawyer controlled data including all communications w a sitting president. This is against. Lawyer who was already cooperating with investigators.

          If you can’t see how much difference in treatment the two get you are either intentionally ignorant or dishonest.

          1. “Hillarys lawyers were never raiders.”

            True. Hillary had the good sense not to hire any former Raiders to be her lawyers. I find that lawyers who used to play for that team are the worst of former NFL player/lawyers. The best, of course, are lawyers who played for the old Pittsburgh’s NFL franchise (now called the Steelers, but formerly the Pirates). One of them even made it to the Supreme Court. True story.

            1. The Minnesota Vikings also had a high quality player/lawyer.

          2. We’ve been over this previously, and it’s not as simple as you or your vehemence would imply.
            This was investigated in fact. At length. By the FBI and by Congress. Comey even explained why there was no crime here due to lack of mens rea.

            We have zero idea of the Mueller’s thinking, or what crimes he’s referred. But if Wray was willing to pierce privilege I very much suspect it’s more important than campaign stuff.
            If I didn’t know your pattern well, the fact that you start and end the post by yelling at me personally would not speak of particular faith in your arguments to carry the day. But that’s just your usual style.

            1. ” Comey even explained why there was no crime here due to lack of mens rea.”

              Yes, and that’s the problem: He explained there was no crime due to a lack of mens rea for a crime which explicitly lacked a mens rea requirement.

              When you get a security clearance, you’re required to sign a paper acknowledging that you have an affirmative obligation to keep classified information secure, keep it out of the sight of people without appropriate clearances and need to know. “I didn’t mean for somebody to break into my private server.” isn’t an excuse. “I was too busy to go through the emails myself, so I had my lawyers (Who lacked security clearances) sort them out.” isn’t an excuse.

              The very complaint here is that Comey cleared her after laying out why she was guilty.

              1. Didn’t we talk about this? Strict liability has to be called out; no mens rea defaults to willful. That’s why we were spending so much time talking about reckless vs willful back in the day, as I recall.

                1. You clearly have no idea of how the law governing security clearances operates. I’d guess that’s because you’ve never had or applied for one or known anyone who committed even minor violations. Clearance holders lose jobs and face threats of charges over very minor violations. They go to jail over slightly more moderate ones. Clinton’s server was as severe a breach of security clearance protocol as possible without crossing the line into willful treason. So why wasn’t she prosecuted when other security clearance holders are for significantly less severe breaches? For the same reason Gen. Patraeus only got a misdemeanor for his handling of classified information – political connectedness.

            2. “But if Wray was willing to pierce privilege I very much suspect it’s more important than campaign stuff.”

              Looks like a big fat Nope. NYT reporting that it’s about a porn star and a playboy model. What a sick joke they’re making of this country.

              I’d have to agree with Dershowitz: Mueller, the man who protected mass murderer Whitey Bulger, is a “partisan and a zealot” and this raid is really appalling.

              1. I’m hearing it’s about Taxicabs. But you do you!

                Mueller, the man who protected mass murderer Whitey Bulger, is a “partisan and a zealot” and this raid is really appalling

                Haha this is weak as hell.

          3. ‘If you can’t see how much difference in treatment the two get you are either intentionally ignorant or dishonest.’

            Two completely different investigations get two completely different approaches shocker.

        2. Sure, Sarcastro. Maybe instead of raiding Cohen’s office, they should have just let Trump destroy whatever he wants and bleach the hard drives?

          Let me know when this happens:


          Re: Trump interview w/special counsel, perhaps all can agree it should be under same terms @TheJusticeDept gave Hillary Clinton:
          1. An exoneration letter is drafted in advance.
          2. Immunity is given to top Trump aides (and they’re allowed to sit in on interview).
          3. Interview isn’t recorded.
          4. Lead official (Mueller) doesn’t attend.
          5. #2 official’s family has received large donations from Trump political friends.
          6. Prior to the interview, lead official meets privately on plane tarmac with Trump’s wife (to discuss grandchildren).
          7. Main interviewer has expressed disdain for Trump’s opponents, such as discussing an “insurance plan” with higher-ups to undermine them. If the same terms aren’t offered…Was Clinton’s interview process unfair? Or is the one proposed for Trump unfair? #FairIsFair
          8. As long as they believe Trump didn’t intend any harm, he’s let off the hook for any violations.
          9. If Trump becomes a target, it should be referred to as a “matter” not an investigation.
          10. Trump aides should be permitted to destroy subpoenaed or relevant public records and wipe relevant servers with a cloth or something.

          1. So you ‘re saying that because you think Clinton got away with something, you WANT Trump to get away with whatever, if anything he’s done? I mean, that’s pretty up front about supporting the obstruction of justice, I suppose, so there’s that.

            1. A fair question, Nige.

              I think it’s pretty clear Hillary got away with, at least, numerous and arguably minor financial improprieties (such as the failure to disclose the receipt of funds from Russian-affiliated and other foreign interests as documented by the NYT), a host of process crimes, and more generally a lot of soft corruption and influence peddling that may not even be strictly illegal.

              But, I don’t have a strong opinion normatively on what the punishment should be for such matters or on how investigators and prosecutors should approach them, so long as there is a consistent practice being followed so that the rule of law may be upheld. If an elected official can get away with rampant soft corruption, that is not so much an indictment of the law as it is of the apathetic voters and the unscrupulous government, collectively.

              What bothers me is the degradation of the rule of law, the blatant political bias, and the sheer arrogance and foolishness of the wrongheaded bipartisan elite ruling establishment, if you will.

              1. Well if you think she got away with stuff and that that’s bad in principle, now’s your chance for someone even more powerful and who may have done far worse to be brought to account before the rule of law gets any more degraded.

                1. No, you missed the point. The rule of law is degraded if the law is applied inconsistently toward Trump vs. Clinton. It should be applied consistently and equally to them both.

                  I don’t think it’s bad in principle if Clinton got away with violating federal statutes. By some estimates, the average American commits three felonies per day because of our absurd federal laws (see “Three Felonies a Day”).

                  What’s bad is if Trump is held to a different standard than Clinton.

                  1. Things look legally dodgy for someone in the Trump camp, you are suddenly very worried about double standards and very interested in litigating Hillary stuff from two years ago.

                    I don’t think you’re insincere, but would suggest you interrogate why your concerns are so conveniently timed and placed.

                    1. I’ve been interested these recent events all along, nothing sudden about it. But yes, it is a timely topic of conversation. Great insight!

                  2. But if what you’re saying is true, then you are calling for Trump to be basically let off, which will result in the person in the most powerful political position being put completely above the law, not just Trump, but whoever follows him in the office. That sounds a lot worse than demanding some arbitrary and rather obviously partisan act of balance. In what other aspect of life is the your opinion that the law was incorrectly applied in one case mean that the law MUST be incorrectly applied in all others? Or, specifically, one other, which will protect a political figure you support? Miscarriages of justice abound, that does not mean that justice must be miscarried in all cases to satisfy partisan political demands for fairness.

                    1. No. As I said, you commit three felonies a day.

                      Do you think it is a miscarriage of justice that you are not in jail? No, it would be miscarriage of justice to enforce the letter of federal law fully, even if it was done consistently. To do so inconsistently against political targets is an even greater miscarriage of justice.

                    2. So you’re carving out an exception where Trump should not be subject to the law based on the premise that my three daily felonies and Trump’s felonies will be the result of unreasonable enforcement rather than either of us having done anything seriously wrong. It’s funny that you don’t seem to assume that Clinton was similarly persecuted – or indeed that the double standard was her over-persecution by those now defending Trump so assiduously – given that she was subjected to so many investigations and hearings over the years. Is the failure of the Republicans to have her successfully prosecuted for her three daily felonies a mark of their forbearance or incompetence, do you think?

                    3. I am not saying Trump not be subject to the law, I am saying he should held to the same standard that Clinton was. From a procedural standpoint, that dictum has already been grossly violated in way that any fair-minded person should find pretty egregious. The same is true from a substantive standpoint with regard to Flynn, at least. I withhold judgment on Manafort and the others, as I would not be surprised if their deeds merit serious punishment (although, even then — where’s the Podesta Group investigation and indictments? Remember this had nothing to do with Trump and everything to do with the Podesta Group).

                      But to be clear, the story isn’t over yet. Will Mueller exonerate Trump completely? Will he issue a statement like Comey’s Clinton statement, letting him off the hook for something arguably minor because he didn’t really mean any harm, and gently needling him on behaviors that brushed up against, say obstruction? Or, perhaps he will finally discover a single shred of evidence of “collusion”? Or perhaps he will be the partisan zealot he appears to be and take a scorched earth approach, reaching as far as he can to damage Trump, ethics and fairness be damned?

                    4. So in order to treat them equally, Trump must be subjected to intensive and repeated investigations and hearings and made to answer questions in long grueling sessions under oath in front of hostile interrogators as well as having his dealings examined by Federal investigators? Ok.

                  3. Eh. Not holding someone responsible because someone else got away with something is not great for the rule of law. If Trump did break laws, he should be held responsible for it. This would be good for the rule of law if it marks a turning point in holding the politically connected accountable. For some reason, I don’t think that will be the case.

                    1. That’s easy to say, but the devil is in the details. Unfortunately, everyday life has now been criminalized. You’ve probably broken the law many times, but I doubt you think that you should be in jail. So we have to define “getting away with something” and being “held responsible.” Was Obama “held responsible” when his violation of campaign finance laws to the tune of 10-20x as much as Trump’s $130,000 was treated like a trivial formality and he simply paid a fine? I think so. But if a similarly situated person is treated more harshly for political reasons, that’s persecution.

                    2. But clearly he was held responsible. Why are you scared, or outraged by, the idea of Trump also being held responsible? Is it because you sense that perhaps the devil really is in the details?

          1. FFS spend some time on Snopes.

            You at both putting right-wing opinion pieces up against an actual legal investigation.
            You’re also dismissing another legal investigation that found nothing to investigate.

            It’s not a double standard to note that when the FBI says ‘this is criminal’ it’s different than when Breitbart declares something criminal.

            1. 1. Vulgarly and vaguely demand that people go and read a crappy left wing nut job web site.

              2. Wave away simple, uncontested facts about Obama by attacking National Review for being a right wing source.

              3. String together some unintelligible non-sequiturs.

              4. Mention Breitbart News out of the blue, just for good measure.

              1. 1. Ad hominem against Snopes doesn’t mean you can brush off their issues with the narratives you put across. I could have as easily said ‘your stuff all comes from right-wing sites so lalala. It shouldn’t be necessary to come up with reasons you should ignore every source of skepticism of your stories of evil liberals.

                2. It’s not uncontested just because you say it is. I looked it up, and found Snopes, and your numbers as well as your story and even your understanding of the law are contested. But then the very act of contesting you makes someone biased and thus not legitimate. Convenient that.

                3. It’s not a non-sequitur just because you have trouble addressing it. Your source for the FBI’s double standard is to compare right-wing accusations with actual FBI accusations. That’s not a double standard; it’s having standards that aren’t purely partisan.

                4. Breitbart was the source that popped up when I looked up some of your list above. And then weirder sites with names like FreedomLibertyNews or LiberalLies or whatnot.

                1. Link to Snopes (lol) contradicting National Review’s Andrew McCarthy. Instead of just mentioning it vaguely.

                  1. https://www.snopes.com/ fact-check/do-fbi-agents-have-a-secret-society/
                    https://www.snopes.com/ news/2018/02/02/nunes-memo-drops-flops/
                    https://www.snopes.com/ fact-check/clinton-hard-drive-destruction/
                    https://www.snopes.com/ fact-check/campaign-contributions/

                    The rest is mountains out of molehills or comparing an initial investigation to where Mueller is today.

                    And what the heck is 8. ‘As long as they believe Trump didn’t intend any harm, he’s let off the hook for any violations?’ you know difference crimes are treated differently.

                    You’re reaching so hard. And as Nige noted no shouting about Hillary being bad changes Trump being at least as bad.

                    1. See my reply to Nige above.

                      Your snopes link regarding Obama’s campaign contributions does not in any way contradict the National Review article by Andrew McCarthy that you replied to above.

                      As for the tweet I quoted above, I thought it was a good list. Unsurprisingly, none of your snopes links contradict that either. Re #8, I think that was her way of pointing out that Comey pretended there was a higher mens rea requirement for a crime than the relevant statute indicated.

                    2. My snopes reply was to JesseAz’s post, so I thought I’d throw it in.

                      You think it’s a good list because you are uncritical of stuff you agree with, and you love to believe Hillary got away with something.

                    3. You uncritically posted an opinion piece as truth, declared it was ‘uncontested facts’ but later just said ‘I thought it was a good list.’

                      All in service of bashing Hillary in a piece about Trump’s attorney being in deep trouble.

                    4. You’re confused. I posted a tweet. It’s a good list, and I say that as someone who is critical of stuff I agree with. You haven’t even remotely begun to contradict or refute any of it.

                      JesseAz posted an opinion piece, which raised certain uncontested facts about Obama’s campaign finance issues, and compared those to today’s circumstances. You haven’t remotely begun to engage with that, and won’t even acknowledge the facts.

                    5. So you’re pivoting from your tweet list to this opinion piece as your factual basis for why Trump’s unfairly persecuted.

                      I know Obama’s campaign got fined in 2008. Is your problem that the law wasn’t enforced (because it was, hence the fine) or that the press didn’t yell about it? Because that is both irrelevant and an awful parallel to paying a porn star hush money.

                    6. I’m not pivoting, I was staying on the topic of this particular sub-thread. Since you went off topic and wanted to talk about the tweet here instead of replying to my post above, I’ve been accommodating you.

                      The point about campaign finance is that if there was a violation here, it was clearly de minimis (see the title of the article) per the Obama standard. But Trump is already being treated extremely differently than Obama, with his personal attorney’s office being raided by partisan zealots, instead of just papering over the issue like a formality later on with a fine.

                      Under the Clinton standard, instead of a raid, they should have just sent a subpoena and waited patiently for Trump and his attorneys to permanently destroy any documents they wanted to, bleach the hard drives, smash the phones with hammers, and only then provide their curated response to the subpoena.

          2. Uhhh. No one reported it because no one legitimately cares.

            Campaigns are huge organizations and taking donations is complicated, screw ups are bound to happen and Obama’s ’08 campaign apparently screwed up more than most.

            But buying someone’s silence is a whole new level of sketchiness, and as has been pointed out the John Edwards prosecution shows that it’s hardly a “novel theory”.

      2. Thirty years of investigations and hearings and they found feck-all on Clinton. A year and a half of obstruction and deflection for Trump and every day there are like three scandals that would have sunk any other administration. It is certainly an appalling difference.

        1. Your summary of the Clinton’s is funny. Dozens of convictions of associates. Refusala to prosecute from federal investigators who based on donations tend to support them. Etc.

          1. Rightfully or wrongly – part of the decision to indict/prosecute is based on the likelihood of conviction.

            In Hillary’s case,it would be virtually impossible to get a conviction due to the inability to get an unbiased jury pool, especially if the jurisdiction is in a blue area.

            1. Forget the decision to prosecute. The Clinton Foundation didn’t even warrant an investigation, despite there being a thousand times more evidence of wrongdoing than anything on Trump. Likewise Hillary’s collusion with Russians, British, and others domestically to produce the dossier, FBI spying and investigations to interfere in the election.

              As for Comey’s decision, I continue to believe that he fancied himself a wise sage crafting a historic political compromise when he said “no reasonable prosecutor” would act, right after explaining that there was clear evidence of a crime. He was saying that no reasonable prosecutor would indict because of the political circumstances, not due to a lack of evidence of a crime for which normal people are routinely deprived of liberty. Instead he gave the evidence to the voters as the jury.

              1. Clinton Foundation was problematic and certainly influence was sought, though no evidence it was obtained. And by all accounts did an above average job of delivering charity.

                Trump Foundation is mockery of charitable foundations, he could probably be sent to prison based on it alone.

                As for the Clinton Email investigation there have been many instances of people mishandling classified intel without facing criminal charges. And the instances of criminal prosecution (almost?) always involved deliberate mishandling of the classified intelligence.

                There’s no reason to believe that Clinton, or the multiple people who exchanged emails with her, ever intended to mishandle classified intelligence. Therefore, no reasonable prosecutor would ever act.

                Trump on the other hand could have been reasonably prosecuted many times over the years, which makes his current job incredibly awkward.

                1. I don’t disagree with some of what you say about Clinton, but you’re plain wrong in saying that if there is no intent to mishandle information, then no reasonable prosecutor would act. That may be part of it, but soldiers are routinely imprisoned based on the actual mens rea requirement in the statute: gross negligence (or as you might say if you’re Peter Strzok editing Comey’s statement, extreme carelessness).

                  The real reason that no reasonable prosecutor would act is that it was Hillary Clinton in the height of a presidential election, supposedly on the cusp of becoming President and thereby having supreme authority over such matters. So, no reasonable prosecutor would act because the issue was too political. I can respect that position.

                  Your statements about Trump have no merit.

                  1. I’m doubtful you can find any examples of soldiers being imprisoned for occasional classified materials being transmitted over insecure channels. You really think Clinton should go to prison because, over a period of several years, people in her office occasionally transmitted classified information (typically poorly marked) over email instead of the special system?

                    As for Trump, there’s a reason why he’s so freaked out about Mueller getting into his financials.

                    1. aluchko|4.11.18 @ 1:39AM|#

                      “. You really think Clinton should go to prison because, over a period of several years, people in her office occasionally transmitted classified information (typically poorly marked) over email instead of the special system?”

                      Aluch –
                      1) It wasnt occasional (not even close to being occasional)
                      2) they were not poorly marked
                      3) She had the one of the highest levels of security clearances
                      4) she frequently instructed employees to circumvent the security
                      5) with the high level of security clearance, she had the responsibility to know what was classified even with zero marking.
                      6) she cant be so dumb that she couldnt grasp #5 – but the does blow the concept that she was the most qualified candidate ever.

                      so yes – she should be convicted and sent to prison

                    2. Joe_dallas, have you happened to check out Comey or Hillary’s Congressional testimony. You may be surprised about some of those facts you’ve listed!

                    3. Sarcastr0|4.11.18 @ 8:27AM|#

                      Joe_dallas, have you happened to check out Comey or Hillary’s Congressional testimony. You may be surprised about some of those facts you’ve listed!

                      The surprise is that anyone would take Comey’s or Hillary’s congressional testimony as providing and credible insight into the actual facts

                    4. And how did you happen to learn the actual facts?

                    5. There are none so blind …

                    6. Yeah, thought so.

                    7. “I’m doubtful you can find any examples of soldiers being imprisoned for occasional classified materials being transmitted over insecure channels.”

                      I guess you only follow the news that’s curated to fit your politics.



                2. Please learn the law on security clearances. Intent is not necessary for a criminal violation in this area.

          2. Yeah, they found feck-all, or nothing bad enough to prosecute and you’re still sore now that you’ve put a weeping open sore in the White House and it turns out that while you guys used investigations and hearings to harass your political enemies, others use them to earnestly and sincerely uncover crimes and wrongdoing and that’s very confusing for you, I know.

    2. Infatrump! Infatrump! They all have it in fa Trump!

      1. Many of the judges do. They’re trying to stop him from doing what he’s Constitutionally entitled to do.

        1. Dammit the man is a king and he can do what he likes don’t they know that?

          1. Explain how a federal judge made it illegal for Trump to end an executive order issued by Obama. Explain that and your argument may have a point.

            1. Because Trump is incompetent and doesn’t know what he’s doing and does everything wrong and boasts about how he’s going to do it wrong and then gets mad when it turns out he can;t do things the easy he wants to just by waving his hands in the air and making it happen?

        2. Is he Constitutionally entitled to have his lawyer make illegal six-figure campaign contributions ostensibly without his knowledge? Because that’s what yesterday’s raid was apparently about.

          1. No. But he’s constitutionally entitled to set immigration limits and repeal previous EOs.

            1. Point to the part in the US Constitution where he can set immigration limits? While you are looking that up you could also try to explain what that has to do with the raid?

              Look forward for your in depth explanation.

              1. Show previous prosecutions of an NDA being a campaign contribution. He’ll, the Clinton’s received millions from Chinese donors in their campaigns. Obama utilized non verified cc contribution and was shown to have received money from ME donors. How is a newspaper endorsement not a contribution under your theory? Or a newspaper hiding a story on a candidate.

                You liberals are using novel theories of criminal action because you ideas of politics failed electorally.

                1. Look at you.

                  You’re talking about Hillary, about immigration EOs, about how liberals are cheating, and are taking down some straw theory of the case against Cohen that you haven’t bothered to actually lay out.

                  When you just spew out your pet outrages and knee-jerk narratives like this, it does not look super credible.

                  1. Not to mention he appears too agitated to pay any attention to what his autocorrect is turning his sentences into

                2. Show previous prosecutions of an NDA being a campaign contribution.

                  Are you unfamiliar with the prosecution of former presidential candidate John Edwards?

                3. I think the current criminal action is because your ideas of politics succeeded electorally, and it turns out the successful politicians may be criminals.

          2. It’s not a campaign contribution. If it is then the Kennedy’s would all be in jail. Or any politician who grants a mistress a job.

            It is easy to argue the payment was made to save the Trump’s marriage, not as a campaign issue.

            This new novel theory of everything Trump does is getting out of handed. Just like the novel theory against Perry in Texas or the John Doe raids in Wisconsin.

            1. Or John Edwards?

              Sure he avoided jail, but only because the jury ended up deadlocked after his defence claimed that a) the purpose was to save the marriage with his dying wife and b) claimed it was all an aides doing and Edwards knew nothing of it.

              For Cohen a) is a lot harder to claim due to Trump’s reputation and the proximity to the election, and b) is flat out impossible to claim since Cohen signed his name to the NDA.

              So yes, prosecuting Cohen is completely consistent with the prosecution of John Edwards.

    3. Why do I get the feeling that if Mueller produced a smoking gun and a signed confession by Trump that you would still would argue that he was framed by a legal establishment that was out to get him?

  2. The statement that “raids of attorney offices are highly disfavored,” would only be true where they are investigating a client of the attorney. However, that would not be true if they were investigating the attorney for his own acts, which have nothing to do with an attorney client relationship.

    Regarding the Stormy Daniels matter, and possibly other matters, there is no attorney-client privilege. This is because for the privilege to apply, there must be an attorney-client relationship. Since Cohen claimed that he did not inform Trump of the matter, and he acted as a party to the agreement, in his capacity as sole member of Essential Consultants, LLC, how is there an attorney-client relationship between Trump and Cohen on the matter?

    1. If the warrant involves a search of attorney files, the statement that the search of the attorney’s office being disfavored would still be true. If they were investigating the clients, the search of the attorney’s office would be almost always disfavored. The information would be subject to attorney-client privilege and be work product and inadmissible in court.

      1. You are correct that “If they were investigating the clients, the search of the attorney’s office would be almost always disfavored.” But we do not know that to be the case.

        Moreover, you overstate the law in indicating “The information would be subject to attorney-client privilege.” Attorney-client privilege protects communications between an attorney and client, not the information itself. There could be a substantial number of documents in a client’s file that are not subject to the privilege.

        Investigators would prefer to obtain the documents elsewhere, but this is simply to avoid the excess work involved in having a taint team go through an entire file to separate what is privileged from what is not. However, that is not mandated by law. Some of the commentators are treating the U.S. Attorney’s Manual like it is the law. It is written based on considerations of law, but also with concern about efficiency.

  3. The statement that “raids of attorney offices are highly disfavored,” would only be true where they are investigating a client of the attorney. However, that would not be true if they were investigating the attorney for his own acts, which have nothing to do with an attorney client relationship.

    Regarding the Stormy Daniels matter, and possibly other matters, there is no attorney-client privilege. This is because for the privilege to apply, there must be an attorney-client relationship. Since Cohen claimed that he did not inform Trump of the matter, and he acted as a party to the agreement, in his capacity as sole member of Essential Consultants, LLC, how is there an attorney-client relationship between Trump and Cohen on the matter?

    1. Well, we don’t know the exact reason for the raid, and the nature of the crime(s) that are being investigated.

      In addition, raids of attorney’s offices are generally disfavored because it’s not like there is a pile of documents labeled, “Crime Papers” that you can take. You have to go through all of the ACP documents … which is what is disfavored … to find the good stuff.

      1. It’s also disfavored because it looks a lot like a fishing expedition.

  4. Cohen assisted to Trump with human trafficking, so he can go to jail.

    1. America has some of the worst human trafficking to get to work. Humans stuck in traffic for hours.

      Human trafficking is a misused and over-used word to garner sympathy for the drug warriors shifting their jobs to other vice “crimes”.

      1. I think springjourney is one of the Q-anon folks like Rosanne.

        1. I thought the Qanon stuff was that Trump is any second now going to suddenly bust all the child-traffickers? And that Mueller is secretly helping him?

      2. yes, anyone who has consensual sex can go to jail for violation of human trafficking laws.

  5. First, it’s not yet clear Berman was involved. It’s possible he may have recused himself given he is awaiting a possible permanent appointment from the President.

    If you think Trump hates Mueller, God help Berman if he recused himself.

  6. Until and unless SCOTUS overrules Morrison, inferior courts must follow its holding, not Justice Scalia’s dissent, For that reason, I think the judges of the Southern District will follow Morrison even if they find Justice Scalia’s dissent to be persuasive.

    1. True, but that’s one of the great parts of the Scalia dissent. As he notes, the majority opinion requires a “balancing test.” Lower courts are free to carry out this “balancing test” themselves under the different set of facts and reach a result consonant with the dissent. Scalia called this lawless, but he planted the seeds for the incoherence and ultimate failure of the majority decision.

  7. Could the raid on Cohen’s office have been another reason that Mueller handed if off to another prosecutor?

    Imagine if Mueller executed the raid and the docs included a bunch of stuff relating to Trump’s Russian business connections. Could he end up losing those entire lines of inquiry because they could have arisen due to aspects of the privileged communications that were outside the warrant?

    1. If it’s like the rest of the investigation, ie leaking of various classified info like telephone calls to foreign leaders, any information gleamed not related to stormy Daniels will be either leaked or used as the basis for parallel construction in the Mueller investigation.

      That’s why this raid is so out of norm. It is closer in abuse yo the Wisconsin John Doe raids based on novel interpretation of the criminal code. This has been happening with the entire investigation starting w Flynn.

      1. Mueller leaked classified telephone calls?

        1. There have been leaks about the Mueller investigation about every week since it started.

          1. Also, Jesse asserted the investigation leaked classified phone calls. You try and support this with a much more general assertion. You have to see how much you’ve moved the goal posts here.

            And, inevitably, even your more general assertion is incorrect. Witnesses saying what they were asked about is not a leak.

  8. I would point out that when Ken White says something is a big deal, people listen. This is because Ken has been incredibly principled about not letting his dislike for Trump affect his analysis of matters when everyone else is losing their minds. The reaction to his post across the legal blogosphere is a testament to his hard-earned credibility.

  9. 1. We now have a greater understanding of why Trump is having such a hard time finding competent legal counsel to represent him.

    2. Cohen said he settled a case without his client’s knowledge or approval, which strikes me as an extraordinarily stupid thing to have admitted. At this point, criminal charges or not, how does he manage to not get disbarred?

    3. Color me ungracious, but at this point I’m having trouble feeling sorry for anybody who agreed to work for Donald Trump. They had to know what he was when they went to work for him.

    4. Rather than pay for the wall, maybe Mexico could chip in for Trump’s legal defense. Or not.

    5. Remember when Candidate Trump told us that if we elected Hillary Clinton it would be four years of non-stop scandals and criminal indictments?

    6. I wonder if any of the mainstream media (Jake Tapper, are you listening?) are beginning to regret having spent most of 2016 doing “but her email” stories.

    7. On the subject of her emails, the GOP has spent 20 years more or less investigating Hillary Clinton with no actual indictments to show for it. Robert Mueller has been investigating Trump for 14 months or so.

    8. I’m enjoying this far more than I probably should be.

    1. Forminf an NDA with someone isn’t a crime…

      1. No, but doing it in the name of a client without that client’s knowledge or consent is grounds for disbarment.

        1. Not necessarily, if the client gives the attorney carte blanche in advance.

          1. I suspect this was the arrangement, basically Trump told Cohen to do or pay whatever he had to in order to make the affairs go away, and that Trump would pay him back later.

            How that affects the legality I’m uncertain, nor if Cohen got any formal promise that Trump would repay him.

            1. Bagman with a slush-fund of hush-money just SCREAMS legal and above-board.

          2. Hell, why couldn’t the client just waive all of the rules of professional responsibility, then?

            No. Trump could have told Cohen, “Just make it go away, I don’t care how,” but Cohen would have a duty to at least inform Trump of how he’s done it. The NDA has terms that Trump has to comply with for it to be binding. How was that supposed to happen, without Trump being kept apprised of its terms?

      2. No, but taking out a home equity line to pay for the NDA and providing false information on the bank application might be.

        1. How many factually challenged mortgage applications from 2005-2008 have been prosecuted so far ?

  10. Telling that so many have retreated into their Hillary/Obama safe space.

    They shook.

  11. If Cohen’s payment is ruled to be an illegal campaign donation, does that void Daniel’s NDA?

  12. I have an alternative theory to this entire thing: I think this is an act of desperation by Robert Mueller to find something on Trump.

    I’ve heard all the breathless hot takes — “THIS IS A BIG DEAL”, etc — but you’ll have to excuse me for not thinking the DOJ and FBI are above chicanery when they’re out to get someone. Ignoring a Congressional subpoena is a “big deal”, but the DOJ is currently in the middle of doing it. Obtaining a FISA warrant is a big deal, but the FBI got one based on unverified opposition-research, and renewed it multiple times based on the same research. Hell, mishandling classified information was a big deal, but…how many people’s houses got raided or were indicted when Hillary was found to have done exactly that?

    The point is, plenty of things are big deals, but so what?

    My take is Robert Mueller hasn’t found much on the Trump/Russia collusion angle. Sure, there are some loose ends he’d like to tie up, but there isn’t much to suggest a crime was committed. Michael Cohen being Trump’s attorney means that he may have access to some information pertaining or adjacent to the Russia investigation. Of course, on his own, he didn’t have enough to go after Cohen.

    1. (cont’d)
      Enter Stormy Daniels and Michael Avenatti. My guess is Avenatti put a bug in someone’s ear that if Trump didn’t know anything about Stormy Daniels being paid off, there is no attorney-client privilege, thus making Cohen fair game.

      If they can argue that Cohen was involved in some criminal activity, that’s Mueller’s way in. At best, if Cohen committed some kind of campaign-finance violation by paying off Stormy, there will be a fine to pay (if he isn’t pardoned altogether by Trump). That’s not a reason to storm in and confiscate all his attorney-client materials, but it’s all Mueller has. He’s hoping the SDNY U.S. Attorney’s office will be able to pass on information they can’t use to him, then it’s potentially fair game.

      I’m not convinced they had a compelling reason to raid Cohen’s files. I look at how Rick Gates was facing all kinds of charges, which Mueller then mostly threw out when he agreed to help convict Manafort. How one goes from facing decades in prison to possibly a fine and a few months, when the underlying crime hasn’t even been established, is confusing to me. But it shows Mueller is willing to overcharge to make a point.

    2. I have an alternative theory to this entire thing: I think this is an act of desperation by Robert Mueller to find something on Trump.

      Given that you don’t seem to be particularly well-informed regarding the other developments you’ve described – DOJ “ignoring” a congressional subpoena, getting a FISA warrant on Carter Page, etc. – it’s not surprising that you think this alternative theory is plausible.

      You people are clearly desperate to support a foregone conclusion about Mueller’s investigation, and you are willing to supply any number of conspiracy theories to adapt to the changing factual situation. Mueller gets plea bargains on lying to the FBI, and you complain about “perjury traps.” A line of investigation is revealed, and you spin wild theories about how the president can’t obstruct justice. Mueller indicts a dozen Russians, and you make cracks about the Russians throwing the election by buying Facebook ads. You insist that Mueller’s investigation is off the rails, because he hasn’t found evidence of “collusion,” while at the same time insisting that “collusion” isn’t a crime. It just never ends.

      You’re the ones tearing this republic apart from the inside. We don’t even need the Russians to do it for us. You don’t give a shit for the rule of law and will do and say whatever is necessary to protect the most corrupt president we’ve managed to elect in recent memory. You should be ashamed of yourself.

      1. SimonP, You’re an idiot completely blinded and brainwashed by leftist media and your own willful ignorance. This entire brouhaha is founded on your side’s utterly absurd crackpot conspiracy theories, and continues due to your side’s trashing of the rule of law.

        1. You okay, man?

      2. My guess is they won’t be able to produce any evidence showing Trump colluded with Russia to influence 2016 election, and they know that. And to whatever extent they’re politically motivated, they know that hanging this cloud over his head for two years is going to make him a martyr, to some extent. So they have to do something to show this entire investigation wasn’t for naught.

        I think most Americans can see this is bogus, if not based on the black-letter of the law, then on the disparity of treatment in how the Clinton e-mail investigation was handled. That included an actual crime, that we know took place, and by whom. Yet we saw none of these police state tactics, and that was involving classified information! So when you tell me that all this is necessary because maybe Trump and his lawyer tried to pay a porn star off…forgive me if I’m unmoved.

  13. Rosenstein signed off on this. Plus there are the eight Russian indictments. Everything else is you wishfully speculating based on no evidence and/or ignorance on how prosecution of a criminal enterprise works.

    1. I should have thought that the Russian indictments were evidence for the prosecution (ie that Mueller is struggling to come up with anything serious on his actual purported task) rather than evidence for the defense. Indicting unextraditable foreigners for internet trolling, as featured in a magazine article a few months previously ? It’s embarrassing, going on woeful. The Feds could have indicted real Russian baddies practically daily since 1917 – but they didn’t as it was pointless.

      But while I’m here – why would Berman recuse himself ? Simply being a potential Trump appointee wouldn’t cut it, surely ? After all, Rosenstein is an actual Trump appointee. Presumably Berman has some more significant connection. Perhaps he knows Cohen ?

      1. I am fairly certain that hoping for a political appointment/nomination (whichever applies) from the client of an attorney who is the target of an investigation is a significant enough conflict to justify recusal.

        1. Why would that be more of a conflict than having already received a political appointment from the client of an attorney who is the target of an investigation ? (And a rescindable appointment at that.)

          1. What conflict is created by being appointed to a position?

            1. That’s too general a question. What conflict predated the Cohen matter being forwarded to the Southern District?

              1. According to Sarcastro, Rosenstein signed off on the warrant application. Rosenstein is beholden to Trump both for getting his job, and for keeping it. The other guy is in the position of maybe possibly getting into an analagous position to Rosenstein’s beholden-ness sometime in the future. So how does the other guy have a conflict but Rosenstein not ? Unless the other guy has some sort of Cohen connection we haven’t heard about yet ?

                1. You’re getting too deep in the weeds for me. Someone else will have to explain the differences.

                  1. My apologies. I don’t know if the possibility of Berman getting an appointment from Trump counts as a conflict big enough to require recusal. Maybe it does. What’s puzzling me is – if it is enough – how can Rosenstein not be equally, or indeed even more conflcted ? Rosenstein’s actually got a position (prior favor) and Trump can remove it (current threat.) How is Rosenstein’s conflict smaller than Berman’s ?

                    Obviously Rosenstein has the same conflict as any other political appointee, so merely being a political appointee can’t count as a big enough conflict for recusal. So what I’m really saying is that Berman must have a smaller conflict than Rosenstein (as he merely has the possibility , and not yet the reality, of getting a political appointment.) And so his potential appointment can’t be enough of a conflict to justify recusal. Unless Berman has some other conflict beyond his hope of office.

                    For the avoidance of doubt, if we were talking about a judge who Trump had appointed but could not remove, that would be quite different.

                    1. The decision to recuse was Berman’s based on his own ideas about the appearance of a conflict. It ends there. Rosenstein and Berman could and did have different judgements on what constituted the appearance of a conflict. There is nothing wrong with that.

      2. You may be the first one I’ve heard poo-poo the Russian indictments. I would be unsatisfied if that’s all Mueller turned up, but naming those who screwed with our elections isn’t woeful unless you don’t care much about our elections.

        1. (a) they – and others – have been trying to influence US elections since the beginning of time. That’s what foreign governments do. And that’s what the US government does too. It would only matter if it made a difference, which it doesn’t. And the efforts of this Russian troll farm appear to be ridiculously irrelevant to anything.

          (b) But if there are actual Russians within the actual grasp of the Feds, committing actual offences then sure, indict ’em, try ’em, bang ’em up. But can you offer any precedent for indicting foreigners beyond the reach of the law for relatively trivial offences ? Hell, can you even cite a precedent for indictments for murder ? (If the Brits wanted to indict someone for all the poisoning the Russians have been up to that would at least make some sense. But the troll farm stuff is feeble – a transparent attempt to make a political point justifying the Mueller investigation. And it’s so feeble it actually undermines it, since everyone with a brain knows this sort of thing has been going on, by all players, since Moses was a boy.)

          1. Being convicted in absentia is not a novel concept.

            1. Precedents then for indicting non extraditable foreigners, presumably agents of a foreign government, for small time offences ?

              1. “When prosecutors are serious about nabbing law-breakers who are at large, they do not file an indictment publicly. That would just induce the offenders to flee to or remain in their safe havens. Instead, prosecutors file their indictment under seal, ask the court to issue arrest warrants, and quietly go about the business of locating and apprehending the defendants charged. In the Russia case, however, the indictment was filed publicly even though the defendants are at large. That is because the Justice Department and the special counsel know the Russians will stay safely in Russia.

                Mueller’s allegations will never be tested in court. That makes his indictment more a political statement than a charging instrument. To the extent there are questions about whether Russia truly meddled in the election, the special counsel wants to end that discussion (although his indictment will not satisfy those skeptical about Russia’s responsibility for hacking Democratic accounts, or who wonder why the FBI and Justice Department never physically examined DNC servers). ”

                Nat’l Review 2.17.18

                1. Oh good lord. How can you and the National Review believe that if you can’t arrest someone, there is no benefit for law enforcement laying out a case against them? Ask a prosecutor how much work they do that ‘will never be tested in court.’

                  1. Precedents ?

                  2. Who said there is no benefit? The point is that it’s purely political and legally meaningless.

                    1. ‘purely political and legally meaningless’ but also ‘Who said there is no benefit?’ but also ‘meaningless fodder for birdbrain appetites on the left.’

                      You’re all over the map, looks like.

                      Lee Moore – I’m not going to hunt down a previous example (other than the odd dictator). But not even NattyRev calls it unprecedented. This may not be a limb you should be charging down.

                    2. I’m not really expecting you to hunt down precedents for me. It’s simply my thesis that this sort of thing isn’t done, because it’s pointless. And that consequently, this time, it is intended as theatre. I have no recollection of any US federal charges being laid in absentia against KGB or GRU agents, sitting in Moscow, throughout the cold war. Even though they were no doubt ordering and arranging all sorts of crimes even more terrifying than internet trolling. And I can’t avoid the feeling that if some excitable attorney general had done that during the cold war, people would have laughed. But my memory is far from infallible and my attention span has always been short. So if such a past occasion springs to mind, feel free to bring it to my attention. (If it did happen, then my money would be on it happening during Jimmy Carter’s Presidency. it would kinda fit.)

                      I’m advancing down no limbs, I’m merely smiling at the indictments, which if you weren’t so committed to the political theater, you would recognise as comical. If Mueller and Rosenstein follow up with new indictments showing the troll farm managed to alter vote tallies in Wisconsin, or kidnap Hillary campaigners in Omaha, I will wipe the egg off my face. Assuming the indictments hold up of course.

    2. Russian indictments! Lol, meaningless fodder for birdbrain appetites on the left. Oh no, they made a fake Black Lives Matter page!

      1. Now you’re making me sad for you.

        1. Why? The frenzy that has been manufactured over bad internet trolling originating from Russia is truly laughable.

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