The Volokh Conspiracy
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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.
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.
