Federal prosecutors in Manhattan are treating Michael Cohen like he’s a lawyer for the mob. That’s how seasoned white collar defense attorneys describe the raid on Cohen’s office, home, and hotel room conducted on April 9.
Cohen is President Donald Trump’s longtime personal attorney. The news that FBI agents raided his office appeared to leave the president shaken, and he told a pool spray of reporters a few hours after it broke that he was now considering firing special counsel Bob Mueller. The raid was handled by the Southern District of New York, not Mueller’s office.
Lawyers told The Daily Beast that raiding lawyers’ offices isn’t unheard of—but is generally used for lawyers who work with alleged members of organized crime, or for lawyers who are involved themselves in elaborate criminal schemes.
“It’s a tactic generally used against organized crime, against very serious, very serious criminals and lawyers who are operating outside of the protections of the law,” said Alan Dershowitz, a liberal attorney and frequent critic of Mueller’s tactics.
Because of attorney-client privilege, communications between lawyers and their clients are almost always protected from investigators’ prying eyes. Almost. The exception is when investigators convince a federal judge they have probable cause that the lawyer is involved in a crime. When that happens and a search warrant is executed—as happened today—then a team of attorneys who aren’t working on the prosecution go through the communications first with an eye to protecting privileged communications that aren’t evidence of crime.
“The only excuse for raiding a lawyer’s office is if the lawyer is potentially involved in crime—if there’s probable cause to believe that the attorney is either involved in crime or his services are being used for that,” said Sol Wisenberg, a white collar defense attorney at Nelson Mullins and former federal prosecutor.
David Rivkin, formerly an official at the Justice Department during the Reagan administration, said this kind of raid means federal prosecutors must believe Cohen is “involved in some ongoing criminal offense.”
“It is remarkably unusual,” he added.
Unusual, but not completely unheard of: These kinds of raids happen when lawyers are suspected of involvement in organized, complex criminal schemes. In 2014, for instance, law enforcement officials raided a law firm in Florida whose attorneys allegedly preyed on homeowners by conning them into joining lawsuits against big banks, according to HuffPost. And in 2013, officials raided a law firm with strong union ties that faced accusations of harassing public officials, according to the Los Angeles Times.
“This is precisely the sort of development a complex investigation can have,” said Josh Geltzer, formerly an attorney in the Justice Department’s National Security Division, “and it would deeply infringe on the integrity of law enforcement in this country if the president were to respond by firing DOJ leadership or the special counsel himself.”
The raid tactic drew quick criticism from the president’s outside allies and defenders.
“It always raises serious civil liberties questions when the FBI seizes confidential lawyer-client material,” said Dershowitz. “And they say there’s a firewall, but the firewall consists of FBI agents who sit and read the lawyer-client material. They may not turn it over to the prosecution, but they still are sitting and reading lawyer-client privileged material. And when I tell a client that whatever he tells me, I’ll go to the grave with it, I don’t expect an FBI agent to be reading it.”
Victoria Toensing—who was briefly a contender to join the president’s legal team—told The Daily Beast she thought the raid was part of a concerted effort to end Trump’s presidency.
“It is outrageous, and it’s an attempt to take down the president which is why Mueller’s got all Democrats on his staff,” said Toensing, who is representing the former spokesman for the Trump legal team, Mark Corallo. “It is highly unethical.”
Several members of Mueller’s team are Democrats, though he himself is a registered Republican.
“They want to bring down the president,” Toensing added. “They think they’re saving the world.”
Shortly after speaking with The Daily Beast, Toensing made the same argument on Lou Dobbs’ Fox Business program show—one of the president’s favorite TV shows.
On Monday night, two White House officials told The Daily Beast that President Trump is personally and closely monitoring the situation regarding Cohen and the raid—even as his attention is supposed to be focused on the evening’s meeting with national security officials and military leaders on the Syria war.
“So, I just heard that they broke into the office of one of my personal attorneys, a good man, and it’s a disgraceful situation,” the president told reporters at the White House on Monday night. “It’s a total witch hunt. I’ve been saying it for a long time. I’ve wanted to keep it down. We’ve given, I believe, over a million pages worth of documents to the special counsel.”
President Trump, in the process of defending Cohen and railing against the “witch hunt,” continued to publicly dangle the prospect of sacking the special counsel—without committing to any action yet.
“Why don’t I just fire Mueller?” Trump said, responding to reporters. “Well, I think it’s a disgrace, what’s going on. We’ll see what happens. But I think it’s really a sad situation when you look at what happened. And many people have said you should fire him. Again, they found nothing and in finding nothing, that’s a big statement.”