The FBI on Monday raided the home, office and hotel room of President Donald Trump’s personal attorney Michael Cohen. The search warrants were reportedly obtained to collect evidence, in part, for Cohen’s $130,000 payment to porn star Stormy Daniels. Trump immediately lashed out.
Joining us to talk about the extraordinary step are two experienced white-collar criminal defense attorneys: Michael Monico, a former federal prosecutor and a partner at Monico and Spevack; and Patrick Cotter, a former federal prosecutor based in New York, and a longtime Chicago white-collar-crime defense attorney at the law firm Greensfelder.
Below, an edited Q&A with Cotter.
This wasn’t a subpoena requesting documents. This was an actual raid on Michael Cohen’s office, home and hotel room. Why would they go this aggressive route?
Search warrants per se are not that unusual. But I think it is fair to characterize this as an aggressive move. It’s aggressive because it was directed towards an attorney’s office and home. One of the most common reasons you would resort to a search warrant as opposed to a subpoena is if you have serious questions as to whether the person you would serve a subpoena on would in fact preserve and give you the evidence you’re seeking.
So would you say going after a lawyer especially the president’s personal lawyer is highly unusual?
It’s unusual. It is. I would say it’s very unusual to search a lawyer’s office. Now having said that, it’s happened before, and will happen again. There is actually a very well established procedure for doing that. So while it’s unusual, it’s not unheard of and I wouldn’t call it freakish.
Isn’t the information covered by attorney client privilege?
In the application, what they must have said is that whatever they want to seize is, in fact, not attorney client privilege. They’re attempting to seize other evidence which happens to be in a lawyer’s office. Only certain things lawyers do are attorney client privilege. Just because the lawyer does it, doesn’t make it privileged. There are at least two standard exceptions to attorney client privilege as far as what passes between a lawyer and his client.
The first one is you’re not actually asking me for any legal advice or any legal services. And this is very common. People often ask lawyers particularly lawyers that have become sort of their personal lawyer to do things and help them with things that are not strictly legal. You’re not asking for the legal advice, you’re not asking him to go to court or anything. They’re just helping you with a business issue or a personal issue or something else. It doesn’t become attorney client privilege because you asked a lawyer to do it instead of your friend. So that’s relevant here because Mr. Cohen a couple of weeks ago went public and said what he did for Mr. Trump regarding Stormy Daniels he did not do as a lawyer. He said he did it as a friend. So by definition anything that he did in that context is not attorney client privilege. So that’s the first big category of stuff that’s not attorney client privilege.
The second is anything that falls within what’s known as the crime/fraud exception to the attorney client privilege. And what that says is that you cannot cover with attorney client privilege anything that involves taking actions that facilitate a new, future, or ongoing crime. The lawyer can’t help you commit crime and attorney client privilege doesn’t cover lawyers who help either knowingly or unknowingly a client to commit an ongoing crime.
They took his phone, his computer, all kinds of documents beyond the scope of the Stormy Daniels payment including his correspondence with the president. So does it seem to you like they’re casting this wide net?
If you’re looking into illegal payments possibly campaign violations, possibly bank fraud, wire fraud related to payments to people falling into the same general category as Ms. Daniels you would absolutely look at phones. You would absolutely look at correspondence with Mr. Trump because those could all contain evidence related to whatever Mr. Cohen did with these people. The mere fact that Mr. Cohen and Mr. Trump have now, after the fact, claimed that Mr. Trump didn’t know what Mr. Cohen was doing, doesn’t mean you have to accept that as a given. So there’s nothing unusual about looking at this phone, computer and documents. That’s what you do. That’s what we in the business call evidence. So there’s nothing weird about that.
Who is the target: Trump or Cohen?
We don’t know. I haven’t seen the search warrant. You can’t assume. It may be Cohen. It may be Trump. It may be both of them. It maybe four other people you and I haven’t even heard of. But it’s dangerous to assume too much. I would say this, if Mr. Cohen were my client and he walked in and he said this is the situation, Pat. Do you think I am in trouble? I would say yes, yes. Experience would suggest that you have a problem because this is an extraordinary search warrant. It certainly is bad that they managed to convince a federal magistrate or judge that there was a risk that you wouldn’t comply with a subpoena. That’s bad. Plus, they’ve got a lot of your records. So if you’ve done anything that is questionable or even inappropriate, federal prosecutors and FBI agents are going to look at it and that’s bad. So do you have risk? I would say anybody anywhere who had a search of their office who ask me if they had risk, I’d say absolutely you have risk. How much? That we don’t know yet. It’s too early to tell.
If you were the president’s lawyer, what do you say to him?
Every lawyer in America periodically, when they read a story about President Trump, screams in unison: shut up! There’s not a lawyer worth their salt in America who wouldn’t tell President Trump to stop talking about this case. He has never done himself any good by talking about this case and he has certainly hurt himself. I think there’s an excellent argument to be made that the reason this search happened is because of the statement made by Trump last week when he said, “I didn’t know,” when a reporter asked him what did Cohen do with Stormy Daniels. And Trump, in front of a half dozen reporters, said “I don’t know. Ask Mr. Cohen.”
What he did by doing that is that he allowed the prosecutors to go in before a magistrate and say we want to search a lawyer’s office. We now have both people -- the only two people on earth who could possibly make that legal claim -- both said that it’s not attorney client privilege because Trump said he didn’t know anything about it. And Cohen said that he did it as a friend not as a lawyer. So any claim that they could have made that this material was covered by attorney client privilege is now gone.