Shit just got real (FBI raids Trump lawyer)

[HurricaneDitka]

@Beckdawrek

I am waiting on the dog to wag. Syria is sitting over there with nobody to help them. I predict bombs flying by tomarrow night. Right in time for the 6o’clock news.

I’m pretty sure people were predicting something along those lines before the attorney’s office got raided. Something about a chemical weapons attack in Douma made a military response rather likely.

[Merneith]

@HurricaneDitka

I’d like to learn more about this. My layman’s understanding was that attorney-client communication is privileged and can’t be used as evidence. That’s apparently not always the case? Is it just a matter of getting a judge to sign off on an extra-special search warrant that has a “go ahead and disregard that attorney-client privilege bullshit” clause in it? Something else?

The part you are asking about there is a quote from Ken White. Ken is a lawyer and former federal attorney who posts at popehat.com. You’ll want to read his full post on the subject. Here’s the link again.

https://www.popehat.com/2018/04/09/the-search-of-trump-lawyer-michael-cohens-office-what-we-can-infer-immediately/
The short answer is that every right in our legal system, including attorney-client privilege, is subject to certain restrictions.
I’ll quote Ken’s further explanation about the process for getting these warrants:

@Ken White

The U.S. Attorney’s Manual — at Section 9-13.320 — [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.

**Such a search requires 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. (Robert Mueller is aggressive on this sort of thing; he already[url=https://www.politico.com/story/2017/10/30/mueller-manafort-gates-testimony-244339] sought and obtained a court ruling that some of Paul Manafort’s communications with his lawyers were not privileged because they were undertaken for the purpose of fraud — the so-called “crime-fraud exception” to the attorney-client privilege.](]contains the relevant policies and procedures. [/url)

Emphasis in the original.

The key take away here is that a bunch of really high-level DOJ employees signed off on this. It’s not just Mueller running around without a jockstrap.

[Merneith]

To get back to “why” and “why now” - I’m reminded by this Wapo article -

Trump attorney Cohen is being investigated for possible bank fraud, campaign...

that Cohen’s payment to Daniels was flagged by the banks involved as “suspicious” for some reason.

@Wapo article linked above

On Oct. 17, Cohen established Essential Consultants Limited Liability Co. as a vehicle for the $130,000 payment, records show. Ten days later, on Oct. 27, the bank Cohen used in New York transferred the money to Daniels via a California bank account belonging to her lawyer, Keith Davidson.

Eleven months later, in September 2017, that California bank — City National Bank in Beverly Hills — asked Davidson about the source of the payment, according to an email reviewed by The Washington Post. Bank officials declined to comment on whether the inquiry was triggered by a request or subpoena from law enforcement.

At some point, Cohen’s New York bank, First Republic, flagged the transaction to the Treasury Department as a suspicious payment, according to the Wall Street Journal.

Cohen used his Trump Organization email in negotiating the agreement with Davidson and in communicating with his bank about the funds.

So if Cohen is being investigated for money laundering or fraud or some such, it started months ago. Mueller’s only interest might be in using it to try and leverage Cohen to flip on Trump.

[Merneith]

PS: Sorry for the triple post, but, speaking of Michael Cohen being investigated for suspicious bank payments, here’s your reminder that he is also the Deputy Finance Chairman for the RNC.

[Morgenstern]

I don’t think the Attorney-Client privilege applies where there is a conspiracy charge and the attorney is a party to that conspiracy. Of course, I have no idea if they are looking at a conspiracy charge.

[Sunny_Daze]

@HurricaneDitka

I’d like to learn more about this. My layman’s understanding was that attorney-client communication is privileged and can’t be used as evidence. That’s apparently not always the case? Is it just a matter of getting a judge to sign off on an extra-special search warrant that has a “go ahead and disregard that attorney-client privilege bullshit” clause in it? Something else?

The other point to consider is that Cohen himself has publicly stated that many areas identified under the warrant would not fall under attorney-client privilege. For example, he has stated that he was acting as a friend, not as a lawyer, when he made the payment to Stormy Daniels. If he’s not acting as a lawyer in that matter, which he himself has asserted, then it’s not protected.

I’d like to learn more about this, myself. I’m keeping my eye out for a good round up for the areas of the investigation where this might be true.

[buddha_david]

@running_coach

Santorum (on CNN) is frothing at the…mouth, desperately trying to remind everyone that there’s still no evidence of collusion.

Please don’t use the words “froth” and “Santorum” in the same sentence.

[HurricaneDitka]

@Merneith

The part you are asking about there is a quote from Ken White. Ken is a lawyer and former federal attorney who posts at popehat.com. You’ll want to read his full post on the subject. Here’s the link again.

https://www.popehat.com/2018/04/09/the-search-of-trump-lawyer-michael-cohens-office-what-we-can-infer-immediately/
The short answer is that every right in our legal system, including attorney-client privilege, is subject to certain restrictions.
I’ll quote Ken’s further explanation about the process for getting these warrants:

Emphasis in the original.

The key take away here is that a bunch of really high-level DOJ employees signed off on this. It’s not just Mueller running around without a jockstrap.

Thanks for this informative summary. I think I’ll take the time to read Ken White’s entire post.

[wonky]

@HurricaneDitka

I’d like to learn more about this. My layman’s understanding was that attorney-client communication is privileged and can’t be used as evidence. That’s apparently not always the case? Is it just a matter of getting a judge to sign off on an extra-special search warrant that has a “go ahead and disregard that attorney-client privilege bullshit” clause in it? Something else?

It’s not always the case. If you communicate something to an attorney in order to make use of that attorney’s services in the commission of a crime or fraud, or to cover up a crime or fraud, the communication is not privileged. There are other exceptions as well.

In addition, the only privileged communications are ones where the communication is for legal advice. So, if they were just talking/working together as friends, which I think is one of the things that one of them has claimed, then there is no privilege for those communications.

[Voyager]

@Chronos

For extra irony, there probably weren’t actually any crimes committed with the NDA, because Trump probably did pay back Cohen, so it wasn’t actually a campaign contribution. But Trump’s reflexive need to lie about everything lead to him saying that he didn’t pay Cohen, and that lie created the probable cause for the warrant.

TL;DR: Because Trump was really stupid about one crime that he might not have even committed (campaign finance violations relating to Stormy Daniels), Mueller now has complete access to any records of any other crimes he might find in the office of Trump’s personal lawyer. Want to bet there’s no evidence of any other crimes there?

Liars often get tangled in their lies. If Trump said he paid back Cohen, he is going to have a hard time saying he never had a relationship with Stormy Daniels. If he didn’t pay back Cohen (and I assume that if he did the money would show up) Cohen might have made an illegal campaign contribution.

Trump has stiffed all sorts of people he owed money to, so his lawyer would be on more, and the lawyer can afford it better than lots of his victims.

[Northern_Piper]

So just as a fer instance, this lawyer has said he paid Ms Daniels $136,000, without instructions from Mr Trump, and without his knowledge.

Given that admission by the lawyer, it’s hard to see how privilege would attach to any of his communications about the transaction. If Mueller found evidence that potentially pointed to an illegal campaign donation, or some sort of strange banking transactions, it likely wouldn’t be privileged.

But, it’s fair to assume that other documents in his computer and in his files may well be privileged, if they’re not related to this transaction and may involve legal advice in other situations.

So the prosecutors have to jump through a lot of internal hoops even to apply for the warrant.

Then they have to convince the US magistrate that they have grounds for a warrant. Even if the Magistrate grants the warrant, the Magistrate will impose conditions on the warrant, like taking steps to seal the files and protect privilege, until they can be reviewed by the court to filter out documents which are not privileged and within the scope of the warrant.

[Sasquatch_1]

@HurricaneDitka

I’d like to learn more about this. My layman’s understanding was that attorney-client communication is privileged and can’t be used as evidence. That’s apparently not always the case? Is it just a matter of getting a judge to sign off on an extra-special search warrant that has a “go ahead and disregard that attorney-client privilege bullshit” clause in it? Something else?

Nothing wrong with the earlier answers, but I think the simplest explanation is that attorney/client privilege only covers actual legal advice, it does not apply if the client uses the attorney in the commission of a crime (even if the attorney doesn’t know), and it REALLY doesn’t apply if the attorney himself is active in committing a crime.

In this case, a magistrate agreed that it was more likely than not that Cohen participated in a crime, so no A/C privilege. The risky bit, is that an instance of breaking the rules for privilege only apply to that incident. Everything else in the lawyer’s business is still protected, so investigators have to be very careful.

[madmonk28]

@running_coach

Santorum (on CNN) is frothing at the…mouth, desperately trying to remind everyone that there’s still no evidence of collusion.

Well played.

[Inigo_Montoya]

It’s amusing and disconcerting to see the shitstorms swirling all around President Trump. It’s going to go on for another 2-1/2 years, some folks will have legal problems, maybe even go to Federal PMITA prison. But among the fallen will not be Donald Trump. Not because he’s innocent, but because Mueller will somehow never manage to get the goods on him, specifically. I wonder why that will be?

[CurtC]

@Sunny_Daze

Because depending on where the money came from, it could violate campaign finance law.

And this is not some minor technicality. People, even prominent people, get sent to prison for that. Just ask Dinesh D’Souza.

My guess is that campaign finance is the crime that justified the raid, but I’m eagerly awaiting more info.

[WordMan]

@buddha_david

Please don’t use the words “froth” and “Santorum” in the same sentence.

I read an article exploring on NBC exploring how they could raid a law office and maintain Attorney/Client privilege for other clients who are not involved in this investigation.

Apparently there is rule in the DoJ rulebook that calls for a smaller group of lawyers from the team be appointed to review all documents and sort them based on whether they are relevant to the case.

The name for this team? ** The Taint Team**.

For Trump and Cohen, attorney-client privilege goes only so far

Of course, this raises a thorny issue: How do the agents and prosecutors review the documents for privilege status, if the entire point of privilege is that it’s not supposed to be seen by people outside the lawyer’s office, particularly members of law enforcement?

The U.S. Attorney’s manual proposes a solution to that conundrum: A “taint team.” Also called a “privilege team,” this is a group, consisting of agents and lawyers not involved in the underlying investigation, brought in to review the privileged documents.

Can you imagine if Rick Santorum tries to speak out against the Taint Team??

[Defensive_Indifference]

@WordMan

Can you imagine if Rick Santorum tries to speak out against the Taint Team??

“Santorum Smears Taint”

[jasg]

New Op-Ed from Frank Bruni at NYT. Trump Seethes, and the Rest of Us Should Tremble

Apuzzo wrote: “His longtime lawyer is being investigated in Manhattan; his son-in-law, Jared Kushner, is facing scrutiny by prosecutors in Brooklyn; his former campaign chairman is under indictment; his former national security adviser has pleaded guilty to lying; and a pair of former campaign aides are cooperating with Mr. Mueller.”

<snip>

There is no Hope Hicks anymore, no Rob Porter, no Gary Cohn, no H. R. McMaster: The ranks of people who either gave Trump a sense of comfort and stability or sought to steer him away from his most destructive outbursts have thinned. He’s navigating this passage more alone than ever. No matter how much he mutters to himself about his own genius, he must be scared.

But not half as scared as the rest of us should be.

Also meant to include this one - Why the F.B.I. Raid Is Perilous for Michael Cohen — and Trump from Ken White of popehat.com.

[jasg]

@jasg

New Op-Ed from Frank Bruni at NYT. Trump Seethes, and the Rest of Us Should Tremble

Also meant to include this one - Why the F.B.I. Raid Is Perilous for Michael Cohen — and Trump from Ken White of popehat.com.

Missed the edit window for this excerpt from the Ken White Op-Ed.

@Ken White

But consider this: The Stormy Daniels payout may be outside the scope of the Russia investigation, but it’s possible that Mr. Cohen’s records are full of materials that are squarely within that scope. And the law is clear: If investigators executing a lawful warrant seize evidence of additional crimes, they may use that evidence. Thus Mr. Trump and Mr. Cohen, with their catastrophically clumsy handling of the Daniels affair, may have handed Mr. Mueller devastating evidence.

It’s easy to conclude that after so many bombshells, this is just another overfrantic news cycle. It’s not. It’s highly dangerous, and not just for Mr. Cohen. It’s perilous for the president, whose personal lawyer now may face a choice between going down fighting alone or saving his own skin by giving the wolves what they want.

[Happy_Lendervedder]

@Bayard

“Santorum Smears Taint”

You win the world.