Up Date 15:15 ET: ABC News is reporting that Geoffrey Berman, the acting US Attorney for the Southern District of NY and a Rudi Guilliani crony, recused himself from the Michael Cohen investigation and had no role in the raids. As per the NYT’s today, it was Deputy Attorney General Rod Rosenstein who signed the warrant.
Late yesterday afternoon the New York Times reported that Trump’s personal attorney Michael Cohen’s office and residences were raided by FBI early that morning based on warrants issued by a Manhattan federal judge at the request of federal prosecutors for the Southern District of NY.
Mr. Cohen’s lawyer, Stephen Ryan, confirmed the raids. “Today, the U.S. attorney’s office for the Southern District of New York executed a series of search warrants and seized the privileged communications between my client, Michael Cohen, and his clients,” Mr. Ryan said. “I have been advised by federal prosecutors that the New York action is, in part, a referral by the office of special counsel, Robert Mueller.”
Mr. Sessions appointed the United States attorney for the Southern District, Geoffrey S. Berman, only in January. Mr. Berman is a former law partner of Rudolph W. Giuliani, a former New York mayor and a supporter of Mr. Trump.
The payment to the pornographic film actress, Stephanie Clifford, who is known as Stormy Daniels, is only one of many topics being investigated, according to a person briefed on the search. The F.B.I. also seized emails, tax documents and business records, the person said. Agents raided space Mr. Cohen uses in the Rockefeller Center office of the law firm Squire Patton Boggs, as well as a room Mr. Cohen is staying in at the Loews Regency Hotel on Park Avenue while his apartment is under renovation, the person said.
The searches are a significant intrusion by prosecutors into the dealings of one of Mr. Trump’s closest confidants, and they pose a dilemma for Mr. Trump. He has dismissed Mr. Mueller’s investigation as a “witch hunt,” but these warrants were obtained by an unrelated group of prosecutors. The searches required prior consultation with senior members of Mr. Trump’s own Justice Department. [..]
The seized records include communications between Mr. Trump and Mr. Cohen, which would most likely require a special team of agents to review because conversations between lawyers and clients are protected from scrutiny in most instances.
Though Mr. Mueller’s team did not initiate the search, if prosecutors in Manhattan uncover information related to Mr. Mueller’s investigation, they can share that information with his team.
Since much of the evidence that the FBI seized included communications between a lawyer and his client, in this case Donald Trump. That would mean the bar for prosecutors to obtain the warrant was higher than usual. There needed to be more than just probable cause. Ken White of Reason explained
(I)t’s not just that the office thought that there was enough for a search warrant. They thought there was enough for a search warrant of an attorney’s office for that attorney’s client communications. That’s a very fraught and extraordinary move that requires multiple levels of authorization within the Department of Justice. The U.S. Attorney’s Manual (USAM)—at Section 9-13.320—contains the relevant policies and procedures. The highlights:
The feds are only supposed to raid a law firm if less intrusive measures won’t work. As the USAM puts it:
In order to avoid impinging on valid attorney-client relationships, prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law. Consideration should be given to obtaining information from other sources or through the use of a subpoena, unless such efforts could compromise the criminal investigation or prosecution, or could result in the obstruction or destruction of evidence, or would otherwise be ineffective.
Such a search requires high-level approval. The USAM requires such a search warrant to be approved by the U.S. attorney—the head of the office, a presidential appointee—and requires “consultation” with the Criminal Division of the U.S. Department of Justice. This is not a couple of rogue AUSAs sneaking in a warrant.
Not all communications between a client and his lawyer are protected, If they were undertaken for the purpose of fraud—the so-called “crime-fraud exception” to the attorney-client privilege, it is then that the communications are fair game for prosecutors. White explains the necessity for an elaborate review process
The basic rule is that the government may not deliberately seize, or review, attorney-client communications. The USAM—and relevant caselaw—therefore require the feds to set up a review process. That process might involve a judge reviewing the materials to separate out what is privileged (or what might fall within an exception to the privilege), or else set up a “dirty team” that does the review but is insulated from the “clean team” running the investigation. Another option is a “special master,” an experienced and qualified third-party attorney to do the review. Sometimes the reviewing team will only be identifying and protecting privileged material. Sometimes the reviewing team will be preparing to seek, or to implement, a court ruling that the documents are not privileged.
Stormy Daniels lawyer Michael Avenatti, speaking with MSNBC host Lawrence O’Donnell, thinks Michael Cohen will take the 5th Amendment over his payment to Stormy Daniels and says the FBI raid would not have happened if Stormy Daniels had not come forward. Jill Wine-Banks, former Watergate prosecutor, and Ari Melber, lawyer and MSNBC host, also joined the conversation.
Tim O’Brien, journalist and Trump biographer, joined he discussion in the next segment.
We don’t know what the FBi was specifically looking for when it raided the premises. We don’t know what they found. Nor do we know how any evidence uncovered will impact any investigations, ongoing or future.