THE GREAT COHEN RAID

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What image comes to mind when you hear the word "raid?" If you are an old-movie buff, you'll think of a black and white film portraying the feds raiding the liquor warehouse during prohibition. Tommy guns at the ready, axes splitting barrels, the hooch flowing into the sewers. Now that was a "raid." More modern scenes are right out of "American Gangster," the narcs busting in the apartment where masked naked women are cutting and bagging cocaine powder. The door is busted in with a sledge hammer, cops rush in brandishing assault rifles, "Everybody on the floor, now!" Great stuff.

But nobody would buy a ticket to see "The Great Cohen Raid." It was boring. A federal judge issued a search warrant after finding probable cause to believe Michael Cohen had in his possession evidence of a crime, and there was a risk he wouldn't properly respond to a subpoena. The F.B.I. agents executed the warrant calmly and efficiently: At 6 a.m., they knocked on the door, Cohen opened it for them, they took what the warrant authorized them to take, and left. No axes, no unsheathed guns, not even any harsh language. In fact, Cohen described their demeanor as altogether courteous and professional. 

You prefer to call that a "raid?" Go ahead, it's a free country.

But afterwards, everybody went nuts. The President led the lunatic mob, calling the courteous execution of the court-ordered warrant "an attack on America," "the death of the attorney-client privilege," and similar Trumpian blather. And his chorus responded accordingly:  Hannity and the rest of the inmates at Fox howled at the "three a.m., break-down-the-doors raid." The only button the Trumpsters didn't push was an attack on the ethnicity of the judge who signed the warrant, and that was doubtless because they didn't know the judge's name.

Once they had secured the Cohen papers, the federal prosecutors exhibited conduct that was in every respect consistent with the respectful treatment the F.B.I. agents had accorded Mr. Cohen. To make sure they didn't see any privileged material, at a court hearing court a few days later the government said it had not looked at anything taken from Cohen, and would not do so until the court gave it permission.

At that hearing, a sensible judge presided over an open court conversation about the mechanics of how to preserve the rights of privilege holders ( basically Trump and Cohen) and still permit the government to examine those documents that did not contain privileged material.

But the "responsible media'' totally misreported what happened in court that day.  Panel discussions of TV talking heads featured "experts" declaring the government "won," Cohen "lost," a "bad day for Trump," etc., etc., etc. All nonsense.

That prompted me to write my blog dated April 20, where I pointed out that the only "winner" in court that day was the rule of law. Everybody's rights had been preserved, and progress was made working through the knots so that confidences could be protected while the government could do its job examining any evidence of criminal conduct.

But the editorial board of my favorite newspaper, the New York Times, (obviously no one on the board reads my blog!) thereafter published a Trump-like rant. The paper's front page featured an editorial suggesting that though defense lawyers had been trying to obstruct the prosecutors from getting at the truth, the government had been successful in beating them back, and via the Cohen search, had "overcome" the attorney-client privilege, so that truth and justice could triumph. 

The Times editors got so carried away, they then chastised several lawyers not involved the Cohen search, who had misbehaved in other matters. And in what the editors presumably thought was a related issue, they went on to condemn any lawyer, in any case, who warned a journalist he might be sued if he published defamatory lies! No, I am not kidding.

What to do? Given my retiring nature, I gave em a piece of my mind. I respectfully directed the editors' attention to the actual facts, and suggested they withdraw or amend their rant. For sure, the letter I sent to them was too long. But then again, so is the slightly shorter modified version reprised here. Buckle up. Sorry, I can't help myself:

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"Editorial Board:

On the subject of the execution of a search warrant on Michael Cohen's homes and office, I respectfully suggest your editorial today is almost as inaccurate as Mr. Trump's criticisms were irresponsible.

You wrote:

  

Amid all the tawdry allegations in the Cohen affair, the president would have us believe he is holding high the banner of a sacred principle — attorney-client privilege. The United States attorney’s office in Manhattan was able to overcome the privilege and seize documents from Mr. Cohen after persuading a judge that evidence showed he had committed a crime, and was not just giving legal advice.

The facts are the opposite.

First, the government did not "overcome the privilege." The government has, and has pledged in open to court, it will continue, to honor the privilege. The privilege has been preserved. In fact, the government's investigators have not even looked at the seized documents, and will not do so until the court directs, and even then, it will do so under a court-ordered mechanism that preserves the attorney-client privilege.

Second, no judge was persuaded that "evidence showed [Cohen] had committed a crime." The government's showing was that there was probable cause to believe that evidence of a crime was in his possession, not that he had committed a crime.

Third, the documents seized may have nothing at all to do with giving legal advice. We will not know until the documents are examined.

All this is made crystal clear in the minutes of the court hearings. I cannot imagine the author of your piece read those minutes and nevertheless wrote that editorial. I suggest you owe your readers a clarification.

 Please overlook my pride if I suggest that if you want a clear explanation of what actually did happen in court, you look at my blog published three days ago at

https://londonsbh.blogspot.com/ entitled The Privileged Ones.

Two more points:

1. You suggest, with a condemnatory tone, that the attorney-client privilege has "often been used to keep the law at bay." That is an implicit suggestion that lawyers help their clients to commit crimes, but the attorney-client privilege does not extend to a lawyer and a client planning a crime or a fraud.

2. As to some of the other lawyer activity deplored in your editorial, I suggest there is nothing wrong with one category of conduct you condemn -- a lawyer writing a letter warning, (or, as you would put it, "threatening") a journalist that a planned story is libelous.  Indeed, one would expect a journalist would want to be warned off committing an act that might result in liability. It is not uncommon for libel defendants to offer the defense, "Well, if he thought it was false, he should have said so." 

Furthermore, under the New York Times v Sullivan doctrine, a prominent person who is defamed must show that the defendant knew the defamation was false, or that it was uttered with reckless disregard for the truth. The practical result is that pursuant to the highly praised legal principle your newspaper has successfully established, a victim who learns of a plan to publish a defamatory falsehood about him is virtually required to inform the would-be tort feasor that the planned speech is false, and that adverse consequences may ensue if the libel is published."

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Did the Times correct its mistakes? Did the editors withdraw their misguided attack on the entire legal profession? I repeat myself: Does a bear poop in a tree?

Friends, I'll post here the Times' reply when I get it. Don't wait up.

A bientot.