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Opinion | Attorney-client privilege 101: A lesson for Trump
Post deputy editorial page editor Ruth Marcus has a lesson for the president about how to respond to news the FBI searched his personal attorney's property. (Gillian Brockell/The Washington Post)
As you’ve heard, federal agents raided the office and home of Michael Cohen, President Trump’s personal lawyer. Yet despite how rare an action it is to pierce attorney-client privilege this way, the big-picture story here seems inevitable: Once a serious prosecutor with resources and authority began taking a good long look at Trump and his associates, a bunch of people were going to be in big trouble, with some winding up behind bars.
I checked in with Barbara McQuade, a former U.S. attorney, to get context on the Cohen raid. She emphasized how rare it is for prosecutors to get a warrant for privileged material: Breaching attorney-client privilege in this way only happens when the attorney himself is directly implicated in possible crimes. She also stressed that, because it is such a radical step for prosecutors to take, a complex system of safeguards has been established to make sure it can’t be abused.
First, if the Cohen raid took special counsel Robert S. Mueller III into a new area of investigation, he would have had to get the permission of Deputy Attorney General Rod J. Rosenstein, who oversees the inquiry. Then, to get this kind of warrant, according to Justice Department rules, Mueller needed to get the permission of the U.S. attorney — in this case, Geoffrey Berman of the Southern District of New York, who was appointed by Trump — and had to consult with the Criminal Division of the Department of Justice, giving them detailed information on exactly what he was seeking and why. Then a judge would have to be persuaded to issue the warrant. (ABC News reported this morning that Berman has recused himself from the investigation, which means that others in his office are handling it.)
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The upshot: The Cohen raid isn’t a “fishing expedition,” and didn’t happen because Mueller suspected he might find something interesting, despite how Trump himself and his defenders would like to characterize it as a case of a special prosecutor out of control.
“A judge has found probable cause to believe that evidence of a crime is housed in the office of Michael Cohen,” McQuade told me. “They may have a goal of flipping him, but there’s also evidence of a crime here.”
McQuade also stressed that Mueller didn’t raid Cohen’s office. Instead, it was conducted by the Southern District of New York. “They would have drafted the warrant, supervised the agent affidavit, presented it to the judge, and supervised the execution of it,” McQuade said. “So the idea that Mueller raided Cohen is wrong.”
The raid on Cohen’s office and home could produce all kinds of evidence — some related to his relationship with his client, and some not. They’ve got files, computers, cellphones, everything. Anyone who knows Cohen knows there is bound to be a whole lot of interesting stuff to be found.
The privileged information will then go to what’s sometimes referred to as a “taint team,” a group of Justice Department officials who will review it and decide whether it shows enough evidence of a crime that it falls outside attorney-client privilege. They will then pass that information on to a judge, who could then permit it to be used by Mueller, the U.S. Attorney’s office, the New York state attorney general, or the Manhattan district attorney. In other words, Cohen — and by extension, Trump — has to now worry about more than just Mueller.
Let’s take a step back. One remarkable thing about the 2016 election is the way Trump’s business career was given such a superficial examination by the media as a whole. Again and again, some crazy story or unusual aspect of his financial life would be the topic of one or two investigative stories, but those stories wouldn’t get picked up by other outlets.
Making this more problematic, Trump isn’t someone who played close to the line a time or two, or once did a shady deal. He may well be the single most corrupt major business figure in the United States of America. He ran scams like Trump University to con struggling people out of their money. He lent his name to pyramid schemes. He bankrupted casinos and still somehow made millions while others were left holding the bag. He refused to pay vendors. He exploited foreign workers. He used illegal labor. He discriminated against African American renters. He violated Federal Trade Commission rules on stock purchases. He did business with the mob and with Eastern European kleptocrats. His properties became the go-to vehicle for Russian oligarchs and mobsters to launder their money.
So it was no accident that when he ran for president, the people who joined him in his quest were also a collection of grifters, liars, and crooks — people such as Paul Manafort. Those were the kind of operators Trump has attracted all his life. Honest, upright people with a deep respect for the law don’t go to work for Donald Trump.
As for Cohen, he may be called “Trump’s personal attorney,” but Trump has plenty of lawyers. Cohen’s real job was to be a dealmaker and fixer. He’s the guy Trump would use when he wanted to do a shady deal with a Kazakh oligarch to build a tower in the Republic of Georgia. He’s the guy Trump would have used to negotiate a payment of hush money to a porn star. He’s up to his eyeballs in Trump’s business. I don’t know what they’re going to find when they start combing through Cohen’s computers and cellphone records, but I know it’s going to be pretty darn interesting.
One more thing. Yesterday, the president once again mused publicly about whether he should fire Mueller, but at least with regard to whatever turns up from the Cohen raid, it’s already too late.
“If Mueller gets fired,” McQuade told me, “this case will live, because it’s being handled by the U.S. Attorney for the Southern District of New York.”
Things were bad for Trump before. But they just got a whole lot worse.
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