Why the FBI’s raid on Michael Cohen’s office could spell trouble for Trump

Michael Cohen, President Donald Trump's personal attorney, looks on as his attorney (not pictured) delivers a statement to reporters after meeting with Senate Intelligence Committee staff on Capitol Hill in Washington, U.S., September 19, 2017.

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Michael Cohen, President Donald Trump’s personal attorney, looks on as his attorney (not pictured) delivers a statement to reporters after meeting with Senate Intelligence Committee staff on Capitol Hill in Washington, U.S., September 19, 2017.
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Aaron P. Bernstein/Reuters

  • News that the FBI seized work product between Michael Cohen and his clients could pose significant ramifications for President Donald Trump, who is one of Cohen’s longtime clients.
  • If investigators find that certain communications aren’t covered under attorney-client privilege, they could theoretically be used in a criminal investigation.
  • Cohen’s mounting legal exposure also raises the possibility that he will “flip” against Trump.
  • Cohen is a central figure in several investigative threads as they relate to Trump, his personal dealings, and the Trump administration.
  • Trump refused to rule out firing the special counsel Robert Mueller on Monday, indicating that Mueller is inching closer to the “red line” Trump said Mueller would cross if the special counsel investigated his finances.

The revelation that the FBI seized work product between Michael Cohen and his clients, which could include President Donald Trump, one of Cohen’s longtime clients, is monumental for two key reasons.

  1. If investigators found communications between Trump and Cohen that are not protected under attorney-client privilege, they can be used in a criminal investigation.
  2. Cohen’s mounting criminal exposure raises the possibility that he will “flip” and become a cooperating witness against Trump, who is being investigated by the special counsel Robert Mueller.

Monday’s raid does not appear to be part of the Russia probe. Instead, investigators were acting on a referral from Mueller, likely after he uncovered evidence of potential wrongdoing outside of his investigative focus while scrutinizing Cohen. FBI agents subsequently obtained a warrant to seize records and electronic devices from Cohen’s offices, and potentially some communications between Cohen and Trump.

The president is Cohen’s primary and most high-profile client. Cohen left the Trump Organization in early 2017 and has served as a personal attorney to Trump since then. However, his relationship with the president stretches back years, and Cohen has developed a reputation as one of Trump’s closest allies.

The fact that Trump’s and Cohen’s communications were likely included within the scope of the warrant indicates they “related in some way to the federal crime for which Cohen is under investigation,” former federal prosecutor Renato Mariotti wrote on Twitter.

The Washington Post reported Monday that Cohen is apparently under investigation for bank fraud and violating election law.

Mariotti noted that a “taint team” will review the seized communications to determine which ones fall under attorney-client privilege, and which ones do not.

A taint team is an internal group, walled off from investigators, that the government sets up when it seizes electronically stored documents with a search warrant. The team’s primary responsibility is to separate out materials that are protected in order to avoid later claims that the government improperly accessed the documents, according to The New York Law Journal.

Possible examples of communications that would not fall under attorney-client privilege are those that do not relate to legal advice, or which point toward furthering an ongoing crime, Mariotti said.

A central figure in at least 4 investigative threads involving Trump

stormy daniels

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Joe Raedle/Getty Image

Cohen has been under increased scrutiny ever since he revealed he personally executed a $130,000 payment to the adult film actress Stormy Daniels, who says she had a sexual encounter with Trump. Cohen made that payment 11 days before the 2016 US election.

Cohen has said that he paid the money out of his own pocket, and that Trump had nothing to do with the agreement. Trump echoed the same last week, in his first public comments about the arrangement.

The payment raised red flags on multiple fronts: Cohen’s bank marked the wire transfer as suspicious and notified the US Treasury, and the payment itself could have violated campaign finance rules.

Cohen is also a key figure in at least three additional threads in the Russia probe as it relates to the Trump administration and Trump’s personal business:

The first relates to the Trump Organization’s effort in late 2015 and early 2016 to secure a Trump Tower deal in Moscow and Cohen’s subsequent contact with a top Kremlin official at the height of the 2016 US election. Felix Sater, a Russian-born businessman who acted as an intermediary between the Trump Organization and Russia on the failed deal, revealed last month that Trump’s businessman was actively negotiating with a sanctioned Russian bank to secure financing for the project during the election.

The second thread relates to what The New York Times has described as a “peace plan for Ukraine and Russia” which appeared to favor Moscow. Cohen was reportedly instrumental in developing and hand-delivering the plan to Michael Flynn, the former national-security adviser, before Flynn was forced to resign last year. Cohen has offered shifting explanations for his role in the matter.

Sater and the Ukrainian politician Andrey Artemenko were also involved in the effort. The proposal advocated for the Trump administration to lift sanctions on Russia in exchange for Moscow’s withdrawing its support for pro-Russia separatists in eastern Ukraine. It would also allow Russia to maintain control over the territory of Crimea, which it annexed in 2014.

The third line of inquiry relates to a controversial Ukrainian oligarch’s $150,000 donation to the Trump Foundation in September 2015, in exchange for a 20-minute talk Trump gave at a European conference that sought to promote closer ties between Ukraine and the West.

The oligarch, Victor Pinchuk, drew significant criticism from Ukrainian leaders when he published an op-ed in The Wall Street Journal in December 2016, suggesting Ukraine make compromises with Russia to resolve their conflict. Pinchuk is also the son-in-law of former Ukrainian president Leonid Kuchma, whose government was accused of corruption and ordering the murder of dissenting journalists.

According to The Times, Pinchuk’s charitable organization, the Victor Pinchuk Foundation, courted Trump to speak at the conference in late August 2015. Trump reportedly did not broach the subject of a payment, but Cohen called a consultant working for Pinchuk the next day to ask for a $150,000 fee in exchange for Trump’s talk.

If the taint team finds communications between Trump and Cohen related to any of those four threads – or others that are not publicly known – and determines they do not fall under attorney-client privilege, it could open the door to increased legal exposure for the president.

The facts of the case prosecutors appear to be building around Cohen’s work could also, in theory, prompt investigators to call Cohen to testify against his own clients, including Trump.

Trump warned last year that Mueller would be crossing a “red line” if he investigated any of his personal finances. On Monday, he indicated that Mueller may have breached that boundary.

“I have this witch hunt constantly going on,” Trump said during a military leadership meeting, according to a press pool report. “It’s an attack on our country … what we all stand for.”

He also did not discount the possibility of firing Mueller.

“We’ll see what happens,” Trump said.

Bryan Logan contributed to this report.