While President Donald Trump amps up his ‘witchhunt’ rhetoric, his personal attorney and ‘fixer’ Michael Cohen is looking to be in a whole heap of trouble which should be troubling.
Cohen has repeatedly said that he would take a bullet for Trump or his family, now that the bullet is becoming real, will he really do it? Plus, the bulldog fixer has been avoiding fiver specific questions regarding Stormy Daniels (below), he won’t be able to avoid them now that the FBI has stepped in. It appears that tangling with the adult film actress might wind up being the undoing for both Cohen and Trump.
When your lawyers need lawyers, it’s usually a bad sign. When your lawyers have their offices and homes raided, it’s a really bad sign. News that federal investigators on Monday took the extraordinary step of executing a search warrant at the legal office of Michael Cohen, President Trump’s longtime personal attorney, indicates that Cohen is suddenly in serious legal jeopardy of his own. And although the investigation is not directly related to the Mueller probe, it’s yet another example of the legal walls closing in on one of the people closest to Trump — someone who may have a wealth of information about the president’s own conduct.
The FBI executed the search warrants at Cohen’s New York office and his home and hotel room. The warrants were obtained by federal prosecutors in the Southern District of New York. According to a statement from Cohen’s attorney, prosecutors informed him their investigation is, “in part,” based on a referral from special counsel Robert S. Mueller III.
The first thing to note about this striking development is that the warrant was not obtained by Mueller himself. Whatever the subject matter of this particular investigation, it apparently falls outside of Mueller’s jurisdiction and thus resulted in his referral to the New York prosecutors. So we know the potential crimes that led to the search today do not directly relate to Mueller’s inquiry into any conspiracy with Russians to influence the election or related crimes such as obstruction of the special counsel’s investigation.
We also know that a search warrant, unlike a grand jury subpoena, requires prosecutors to go before a federal judge to demonstrate probable cause that a crime has been committed and evidence of that crime can be found in the premises to be searched. Before approving a search of a lawyer’s office, a judge would want to be satisfied that there was some substance behind the prosecutors’ allegations. This is not just some prosecutorial fishing expedition; it bears the imprimatur of a federal judge.
We don’t know for certain the nature of the Southern District’s investigation. The potential crime outside of Mueller’s jurisdiction to which Cohen has been linked most directly relates to the $130,000 payoff to porn star Stormy Daniels just days before the presidential election. If Cohen made that payment himself or facilitated the payment from another individual or company, it could be deemed an illegal contribution to Trump’s campaign. There could be other alleged offenses, such as tax or bank fraud violations, surrounding any such payments as well. Or there could be other non-Stormy-Daniels-related allegations about Cohen’s conduct that have not yet surfaced publicly.
This was not just any search warrant; that the raid took place at a lawyer’s office further highlights the seriousness of the investigation. Searches of an attorney’s office are extremely rare and are not favored, due to their potential to impinge on the attorney-client relationship. Prosecutors must jump through multiple hoops to get such a warrant approved, both within their own office and at the criminal division of Main Justice. (Notably, this would likely have included approval by Trump’s own guy, the new interim U.S. attorney for the Southern District, Geoffrey S. Berman, who was just appointed by Attorney General Jeff Sessions this past January.)
Prosecutors are also required to consider less intrusive alternatives to a search warrant, such as a subpoena, if practical. Approval of a search warrant suggests prosecutors were able to demonstrate not only the gravity of the potential case but also the risk that evidence might be destroyed or otherwise go missing if they pursued a less aggressive option.
Cohen, and perhaps the president, will likely argue that this raid violates the attorney-client privilege. Indeed, on Monday evening, Trump said it was “a disgrace what’s going on.” In a search like this, prosecutors typically set up a privilege team or “taint team” of investigators not involved in the case to review potentially privileged documents and shield those from the team actually involved in the prosecution. There is an exception to the attorney-client privilege if communications to an attorney are used in furtherance of a crime or fraud; that could come into play here as well. And documents related to anything Cohen did on his own — after all, Trump has denied knowing about the payment to Daniels — are likely not privileged if they do not contain attorney-client communications. Documents are not automatically privileged simply because they passed through an attorney’s hands.
There may well be litigation concerning whether particular records seized during this search are protected by privilege. But seizing the records now allows prosecutors to ensure that the integrity of the evidence is maintained while those legal issues are sorted out.
Cohen, someone extremely close to Trump and who has been known as the president’s “fixer,” appears to have serious legal problems. If federal prosecutors feel they have enough on you to execute a search warrant, it’s never a good sign — just ask Paul Manafort. And to the extent that Cohen, part of Trump’s innermost circle, might have knowledge relevant to Mueller’s inquiry, we can’t rule out the possibility that his own legal troubles could induce him to cooperate in the Russia investigation.
- Why did you pay Daniels $130,000 if you believed Trump hadn’t engaged in an affair with her?
Cohen has been adamant that he didn’t think there was any “there” there in terms of Daniels’ allegations, but has said he made the payout “defensively” on behalf of his client. So why didn’t Cohen make similar payments to the dozen (or more) other women making allegations about Trump’s conduct with them over the years? Or did he?
- Why did you use your personal money to pay off Daniels?
Cohen took out a home equity line of credit to make the payment to Daniels. He insisted he did so with absolutely no promise or expectation of repayment from Trump or anyone related to the President or his company. Which is, um, odd. Why would Cohen put himself in financial trouble — or at least stretch himself financially — to make a six-figure payment to a porn star whose claim of an affair was totally baseless?
- Why did Cohen set up an LLC in Delaware to make the payment?
Cohen established Essential Consultants LLC in Delaware — a state widely known for its lack of corporate transparency — 10 days before he made the payment to Daniels. Why? The obvious answer is to make the payoff as untraceable as possible. But if Cohen believed there was nothing to Daniels’ allegations, why go out of your way to hide the payout?
- Why did Cohen file for a restraining order against Daniels?
The genesis of Daniels’ lawsuit that Trump broke the rules of their “hush” agreement is this attempt by Cohen to silence her (again). Why was Cohen so set on keeping Daniels from telling her story about her alleged relationship with Trump? He went WAY out of his way to keep her quiet — and in so doing provoked the lawsuit that brought us “David Dennison” and “Peggy Peterson” among other things.
- Why was Trump Inc. employee Jill Martin involved in that lawsuit being filed?
Cohen said for months that he was acting alone — with no knowledge or involvement from Trumpworld. Why then was Martin, a high-ranking legal official in Trump’s corporation, the one who filed the arbitration document against Daniels in a California court? Cohen says it was solely because Martin happened to be available to help out. So, there were NO other attorneys in California that Cohen could have asked to file that legal motion?
In order to believe everything that Cohen has said, you need to believe this:
Trump’s longtime personal fixer took out a home equity line of credit to make a $130,000 payment to a porn star alleging an affair with Trump. Cohen created an LLC in a state legendary for its lack of corporate disclosure to make the payment, despite the fact that he didn’t believe Daniels’ story. He went to considerable lengths to keep Daniels from breaking the hush agreement, including filing suit against her in court — and using a senior member of Trump Organization’s legal team to do so.
Which is possible, I suppose. But it requires a whole lot of assumptions and take-my-word-for-its. And Cohen hasn’t offered much beyond perfunctory statements in response to repeated revelations about the payoff to Daniels.
What we know: A series of search warrants were executed against Cohen on Monday. While Mueller reportedly referred the matter to the FBI, it is not believed to have anything to do with his ongoing probe into Russia’s attempted meddling in the 2016 presidential election. That seems to make the Daniels’ payment the most likely focus — although it may well not be the only focus.