In a press opportunity during Trump's meeting with his top military advisers to discuss the Syrian crisis, Trump went on a prolonged rant about the FBI's raid on the office of his long-time personal lawyer and chief "fixer." He blamed Mueller, Rosenstein, and Sessions, called it a constant witch hunt that he's had to endure since his nomination, and calling the raid "a disgrace," and "an attack on our country."
In doing so, Trump seemed not to grasp the facts of how this came about or who authorized and who actually conducted the raid -- and how the materials were handled. Claiming that "lawyer-client privilege is dead," Trump's rambling rant had so many falsehoods and misconceptions that it's important to clarify.
1. How it came about: In the course of his investigation of Trump's lawyer, Michael Cohen, Mueller apparently came upon some indications of possible illegal activities involving bank fraud, wire fraud, and campaign finance violations -- which he took to Rod Rosenstein. The decision was that the nature of these charges did not come within the purview of the Mueller mandate, so it was referred to the U.S. Attorney's Office in the Southern District of New York.
It was this US Attorney's office that took up the case, presented sufficient evidence to a magistrate judge to convince the judge to issue a subpoena and to authorize a raid on the offices and home of Michael Cohen. Cohen's lawyer says this was unnecessary, because Cohen has been cooperating and supplying all the documents that Mueller has requested.
2. Trump claims the FBI "broke into"Cohen's office: This is misleading, at best. "Breaking in" suggests an illegal activity. They had a subpoena obtained legally after presenting evidence to convince a magistrate judge of the necessity.
Legal analysts suggest that the seriousness of such an action by FBI protocols -- not just raiding a lawyer's office when you're investigating his client, but the client being the president of the United States -- suggests that they had very credible evidence of crime and that it was serious enough, and that perhaps they had some indication that Cohen had not in fact been turning over all his records but holding some things back.
The important thing here is that the FBI and the U.S. Attorneys are serious, non-partisan in their execution of duties -- and that no judge is going to rubber-stamp such a request without very solid reasons.
3. Trump's claim of a partisan witch hunt: In his rant, Trump accused them of partisan bias, claiming that "all . . . or most" of Mueller's team are Democrats. Yes, in Trump's world, that would probably make a difference. But not here. Besides: Mueller, Rosenstein, and Sessions are all Republicans. Further, the U.S. Attorney in the New York office that the case was turned over to was appointed by Trump's Attorney General . . . after an interview with Trump himself (highly unusual) in the Oval Office.
4. Trump's claim that lawyer-client privilege is dead: First, there is no lawyer-client privilege when current or future criminal activity is being discussed. Second, the FBI is scrupulous is such cases to keep non-germane, lawyer-client communications separate and unread by the investigators. Otherwise, they lose their case in court.
How they handle this is to have two teams in the raid. One team is the "taint team," which looks at each document to determine whether it pertains to what the warrant authorizes them to take. Documents are separated into two piles. Those that have lawyer-client privilege and are not related to the subpoened charges are not seen by the other team or the investigators. The taint team then has nothing further to do with the case.
5. Trump's assumption he can end the investigation by firing Mueller: Naturally, Trump is feeling like a trapped animal at this point. Michael Cohen has been his fixer who took care of all the messes for him, both personal and in business. All of this seems threatened to exposure -- and to a lot of legal liability that Trump hoped he had dodged. He hasn't. Firing the investigators won't end this. The evidence doesn't go away. It would only add to the obstruction of justice charges -- and severe political damage in congress.
Republican Chair of the Senate Judiciary Committee Chuck Grassley said that "It would be suicide" for Trump to fire Mueller. He advised that "the less the President says about the whole thing, the better off he will be."
6. Trump is probably right about one thing: It seems likely to me and to some legal commenters on TV that this is bigger than it might first appear. I doubt that this is only about the payment to Stormy Daniels. It seems a good bit of overkill for that.
Michael Cohen was involved in attempts to arrange business deals for Trump in Russia. The first listed charge category is "bank fraud," which could include money laundering. It's been long suspected that Trump's real estate empire -- with all his properties for sale, like expensive condos in New York -- is a good place for money launderers to park their money. To what extent was Trump himself involved in shady financial dealings? We don't know. But Michael Cohen likely knew.
7. Firing Mueller or Rosenstein won't stop this: Trump seemed to take this as a new justification for firing Mueller and Rosenstein. That's the beauty of fielding it out to the U.S,. Attorney's office in New York. Firing Mueller and Rosenstein would have no effect on this part of their investigation. It's in other hands -- in fact, as noted above -- in the hands of a Trump-approved appointee.
8. Michael Cohen's response: In contrast to President Trump's angry tirade of misinformation and blame, Michael Cohen responded by telling the media that the FBI agents who carried out the raid "were extremely professional, courteous and respectful. And I thanked them at the conclusion." He added that the raid "was upsetting to say the least," but he did not fault the agents. He made no comments about those who ordered it or approved it.
We live in interesting, often exhausting, times.
Ralph
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