We at Washington Babylon — actually me — ran a story yesterday questioning whether the raid on the offices of Michael Cohen, Donald Trump’s lawyer, was proper. “Whatever you think of Trump, his grandstanding, and his own disregard for legal niceties, everyone should be concerned about the raid on his lawyer’s office. If there wasn’t a very good reason, it would be a troubling matter because privilege is one of the hallmarks of our legal system.”
Well, as various people pointed out to me later, communications between lawyer and client are not privileged if they are talking about committing fraud. So, for example, if an attorney and client were talking about making a $130,000 hush money payoff to a woman the client had slept with, that would trigger the “crime-fraud exception” to attorney-client privilege. “I think that most people understand the difference between speaking to an attorney about a crime they may have committed and recruiting the attorney to help them commit crimes,” Eric Vey tweeted about my story.
(Note: The lawyer Stanley Cohen tweeted a counter-argument, writing, “The real injury even if the search was justified as a matter if law is it diminishes the faith indeed confidence putative clients have in their relationship with counsel as an independent source of protection from the power of the state.”)
Meanwhile, this excellent article at popehat.com laid out all the hoops that the U.S. Attorney’s Office for the Southern District of New York must have jumped through before getting permission for the raid:
A Magistrate Judge therefore reviewed this application and found probable cause — that is, probable cause to believe that the subject premises (Cohen’s office) contains specified evidence of a specified federal crime. Now, Magistrate Judges sometimes are a little too rubber-stampy for my taste. But here, where the Magistrate Judge knew that this would become one of the most scrutinized search warrant applications ever, and because the nature of the warrant of an attorney’s office is unusual, you can expect that the Magistrate Judge felt pretty confident that there was enough there.
I still have various issues with the broader investigation into Trump by Mueller, which seems to have expanded far beyond its original mandate. For example, if it’s true that the raid was to gather information about payments made to Stormy Daniels and Karen McDougal, who both allege (convincingly) they had affairs with Trump, what’s this got to do with Russiagate? If Trump and Cohen discussed making payments to Daniels, it seems to me the president is screwed, figuratively speaking, but that information might well have come out without opening a special counsel investigation to which those payments appear, at the moment, to be irrelevant.
Meanwhile, Mueller is allegedly investigating a $150,000 donation that Ukrainian oligarch Victor Pinchuk made to the Trump Foundation. OK, but Pinchuk is considered to be “pro-Western” and, as I reported here two years ago, in 2008 he made a five-year, $29 million commitment to the Clinton Global Initiative and was overall one of the Clinton foundation’s largest individual donors. Pinchuk was also represented by Doug Schoen, a long-time consultant to Bill and Hillary Clinton. I hope Mueller looks into Pinchuk’s relationship with the Clintons as well as Trump.
Look, Trump gets scarier by the day. His economic and social policies are barbaric and he and John Bolton appear set to embark on a very reckless, futile venture in Syria. But I still feel very wary of the increasingly unchecked power of the state and law enforcement, and believe it’s important that if Trump is removed, it’s because he committed impeachable offenses and not for his politics. That’s what elections are for.
Anyway, that does not fix the problem with the story I wrote yesterday. And if I made any new screw-ups in this one, let me know.