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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: Cohen search warrant

Sean Hannity!

17 Tuesday Apr 2018

Posted by impeachableoffenses in Uncategorized

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Cohen search warrant, Hannity, Michael Cohen, Sean Hannity

By Frank Bowman

Just when you thought the Trump saga couldn’t get weirder, Michael Cohen, Trump’s longtime consigliere, was forced to reveal that his entire list of human clients consists of Donald Trump, Elliott Broidy (a rich Republican fundraiser for whom Cohen arranged a $1.6 million payoff to a former mistress), and … tah-dah … Sean Hannity.

This revelation has occasioned tut-tutting from media watchdogs who note that Hannity has been screaming daily on his TV and radio shows about the illegitimacy of the Cohen search, while conspicuously omitting to mention that he was among Cohen’s clients.  Fair and balanced indeed! And of course, Hannity’s discomfiture has drawn howls of laughter and hoots of derision from pretty much everyone, left and right, who has not yet been submerged into the Borg of Fox News Land.

Along with the outrage and hilarity, there has also been speculation about what sort of thing Hannity could possibly have wanted the legal advice of Michael Cohen, a guy who isn’t so much a lawyer as muscle with a law degree. The obvious salacious speculation has centered on the fact that Cohen’s only two other human clients are guys for whom he arranged payoffs to inconvenient ex-girlfriends.  Does Hannity have his own #MeToo problem?

Hannity has hastened to deny that he might need such services, insisting that the matters as to which he consulted Cohen did not involve any “third party.”  Moreover, says Hannity, Cohen was, perhaps, kind of his lawyer, but not really (“we just chatted, he never sent me a bill, I never paid fees… well, ok, maybe I slipped him a ten-spot once”).  And, insists Hannity, he only talked to Cohen about real estate matters.  Probably.  Mostly.

It’s been a perverse pleasure to watch Hannity try to walk the tightrope between denying any real connection with Cohen, while at the same time trying to claim just enough of a connection to be able to invoke attorney-client privilege.  There has been plenty of skepticism about Hannity’s story, particularly the claim that anyone, especially a gazillionaire like Hannity with the means to hire the best specialists in America, would go to Michael Cohen to get legal advice about real estate matters.

But so far, the delighted commentariat has missed one other telling point: If Hannity is telling the truth and the only time he used Michael Cohen as a lawyer was for occasional verbal chats about real estate, then there would be nothing for FBI searchers to find in Cohen’s office or the other spots subject to the warrant that would reveal either the Hannity-Cohen attorney-client relationship or its subject matter.  Yet Cohen apparently believes there is such material because otherwise he would not have listed Hannity among his clients.  And Hannity apparently agrees, because otherwise he would not have requested Cohen’s lawyers (as he apparently did) to keep his identity secret.

In short, if there’s nothing — no document, no e-mail, no tape, no phone message, no nothing — anywhere in Cohen’s domain that would identify and cause difficulties for Sean Hannity, then neither Cohen nor Hannity would have tried to protect it by identifying Hannity as Cohen’s client.

Unless I miss my guess, Mr. Hannity is sweating with reason.

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The FBI Raid on Trump’s Lawyer: Not a “Witchhunt”

10 Tuesday Apr 2018

Posted by impeachableoffenses in Uncategorized

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attorney office search warrant, Cohen search warrant, John Cronan, Joon Kim, Michael Cohen, Robert Mueller, Stormy Daniels

By Frank Bowman

The New York Times reported this afternoon that FBI agents executed a search warrant on the Manhattan office of Michael Cohen, who has long served as Donald Trump’s lawyer and has often been referred to as his “fixer.”  Mr. Cohen has assumed particular prominence lately because he apparently arranged the pre-election $130,000 payment to adult film actress Stormy Daniels designed to keep her quiet about an alleged affair with Mr. Trump.

Mr. Trump immediately labeled the raid a “disgrace” and a “witch hunt.”  

We don’t know precisely what the FBI was looking for and what it might have found.  No doubt that will become clearer with time. What is clear is that federal searches of lawyer’s offices are extremely unusual and, under Justice Department rules, require extraordinary justification and multiple layers of internal approvals. And then the warrant application must be approved by a federal judge.

Moreover, the Cohen warrant was sought, not by Robert Mueller’s office, but by the U.S. Attorney for the Southern District of New York, acting on a referral from Mueller.  In short, before the application even reached the judge who signed it, it garnered the approval of Special Counsel Mueller and U.S. Attorney Geoffrey Berman (appointed by Mr. Trump).  Moreover, as I explain below, DOJ procedures for approving such a warrant would require the concurrence of Acting Assistant Attorney General for the Criminal Division John Cronan.  Any suggestion that this search was a frivolous fishing expedition by an uncontrolled special counsel — or, in Mr. Trump’s tirelessly repeated phrase, “a witch hunt” — simply won’t wash.

The Department of Justice is acutely conscious that communications between attorneys and their clients enjoy special status under the Sixth Amendment and the common law attorney-client privilege.  Except in rare circumstances, attorney-client communications may not be seized for use in investigations or introduced in court to prove a crime.  There are exceptions, such as when an attorney gives a client advice about how to commit a future crime, but judges are exceptionally protective of the attorney-client relationship and tend to construe such exceptions very narrowly.

Therefore, any law enforcement search of an attorney’s office will always be a ticklish business.  Even when a search is authorized by warrant, merely locating the material covered by the warrant will almost inevitably involve inspecting documents that contain attorney-client communications for clients other than the one who is the subject of the warrant.  And once the batch of material related to the client at issue is found, there are very likely to be some communications covered by the privilege commingled with material that has no attorney-client communications or communications that are unprivileged.

The likelihood of encountering commingled privileged and unprivileged material creates a special problem — if the searching agents see privileged matter and accidentally or purposely convey such material to the agents and prosecutors who ultimately charge and prosecute the case, the privileged matter may “taint” the rest of the evidence and could require suppression of some evidence or even dismissal of the entire prosecution.

For all these reasons and more, the Justice Department has special detailed procedures for authorizing and conducting attorney searches.  Before a warrant can even be presented to a federal judge for approval, the following internal steps must be taken:

  1. The prosecutor contemplating an attorney warrant must consider whether the material sought can be obtained by any less intrusive means, such as a subpoena. U.S. Attorneys Manual 9-13.420(A).
  2. Any attorney search warrant must be approved by the U.S. Attorney in the district where the warrant is sought. U.S. Attorneys Manual 9-13.420(B).
  3. A prosecutor seeking an attorney warrant for material concerning representation of a client must also obtain prior approval of the Assistant Attorney General in charge of the Criminal Division in Washington, D.C., using a specific and highly detailed application form. U.S. Attorneys Manual 9-13.420(C).
  4. Because of the risk of taint, DOJ rules require that an attorney warrant application specify procedures for guarding against it.  DOJ rules state: “Procedures should be designed to ensure that privileged materials are not improperly viewed, seized or retained during the course of the search. … [I]n all cases a prosecutor must employ adequate precautions to ensure that the materials are reviewed for privilege claims and that any privileged documents are returned to the attorney from whom they were seized.”  U.S. Attorneys Manual 9-13.420(D).
  5. The anti-taint procedures will customarily involve a separate team of agents and lawyers charged with executing the search and reviewing the materials found in order to limit the material seized to matters that (a) are covered by the warrant, and (b) are not privileged.  Those agents and lawyers will be strictly barred from communicating to the main prosecutorial team any documents or information deemed privileged or outside the scope of the warrant.
  6. Often, the final privilege determination will be made by submitting material about which there is question to a judge or special master.

The procedural and logistical difficulties in seeking and executing a warrant for an attorney’s office have the practical effect of making such searches extraordinarily rare.  When permission to seek judicial approval of such a warrant is sought, you can be assured that the highest levels of the Justice Department have been satisfied on two critical points: First, the information sought is of very high importance to a case of genuine significance, and second, the evidence supporting issuance of the warrant is very solid.

Moreover, judges review an application to search a lawyer’s office with infinitely more care than a warrant for virtually any other location.

These general observations are triply valid in the case of Mr. Cohen, the president’s personal lawyer.

We can’t yet know what the FBI was searching for or what they found.  But we can be absolutely sure the Department of Justice had darn good reasons to look for it.

 

 

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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