Search and Destroy

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The Cohen Search

Let's look at basics:

1. To obtain a federal search warrant, a prosecutor must show facts supporting his conclusion that there is probable cause to believe a crime has been committed and the target of the search has relevant materials. The prosecutor also needs to provide evidence supporting his conclusion that a subpoena will not suffice. One obvious reason would be because of the subject of the warrant has behaved in a manner indicating that he is likely to withhold or destroy documents or other materials, or has already done so. What Cohen did to earn that distinction of earning a search warrant instead of a subpoena, is yet to be revealed, but I am sure it will be delicious.

2. To obtain a search warrant of the office of an attorney, (which may reveal the lawyer's communications with his client) there is a special procedure that requires consultation with the Criminal Division of the Department of Justice.

3. The warrant to search Michael Cohen's office, residence, and hotel room was applied for by the office of the interim United States Attorney for the Southern District of New York, Geoffrey Berman, a former partner of Rudy Giuliani. Mr. Berman was appointed three months ago by President Trump after an unusual personal interview. And to get the warrant, Berman's office had to get clearance from Trump's DOJ. Latest report: it was Trump-appointee Rosenstein who gave Trump-appointee Berman the green light.

4. News reports say that Robert Mueller, who is a Republican appointed by Rod Rosenstein, who is a Republican appointed by President Trump, referred the matter to Trump's appointee in the Southern District of New York.

5. Apparently the bank from which Michael Cohen borrowed the $130,000 to pay Stormy Daniels reported the transaction to the federal government as a "suspicious transaction." Why reputed millionaire Cohen took out a home equity loan to get $130,000 has never been explained. That too will be interesting.

6. If Mr. Cohen misrepresented the purpose of the loan to the bank, that would be a federal crime.

7. If Mr. Cohen paid Stormy Daniels $130,000 as a campaign contribution to help Mr. Trump, that would be a federal crime because it exceeded allowable campaign contribution limits. Even if not prosecuted as such, it may be a breach of the lawyers' code of ethics and could result in Cohen being disbarred.

8. If the President reimbursed Mr. Cohen for his $130,000 payment immediately prior to the election,  and Trump failed to report that payment as a contribution to his own campaign, that would be a federal crime.

9. The Cohen search warrant was issued by a federal judge who acted independently on the basis of facts sworn to by a prosecutor in the office of Trump's appointee.

10. Any seized documents reflecting attorney-client communications will be examined by a "clean" team of F.B.I. agents unconnected to the investigation, or submitted to a federal Magistrate Judge. Only documents related to a request for legal advice are privileged. Nothing else: not campaign documents, not political discussions re payoffs, not building a hotel in Moscow, not emails to or from Cohen re Putin helping out in the election, etc.  

11. Only communications between lawyer and client qualify for the protection of the privilege. If a third party is in on it, no privilege. So, to take a name at random, a Cohen/Trump communication shared with a lawyer at the National Enquirer would not be privileged. 

12. Also key: documents reflecting the planning of a criminal conspiracy, even if seeking legal advice, are not privileged because they come under the crime/fraud exception to the attorney-client privilege.

13. Trump's televised ravings about the search are more than misguided. They are lies, and they ignore all reality.

14. Bonus: if there are any Cohen/Trump documents discussing a planned payment to Stormy Daniels, that would put the lie to Trump's denial he knew about it.  No biggie; nobody believed Trump's denial anyway.

15. Oh yeah, there is a pending application in the Daniels litigation in California, to take Cohen's deposition, and Trump's as well. Will either take the 5th?  Yum, yum.

Preliminary conclusions: 

1. Michael Cohen is fucked.

2. Stormy Daniels may bring down this President.

3. The President's reaction is off the chart. We may be on the verge of Saturday Night Massacre II.

4. Buckle up.