Sunday, April 15, 2018

The Real Investigation

Andrew McCarthy

President Trump now has real legal peril. The potential jeopardy stems from the investigation that came to light this week when the FBI conducted raids on the office and residences of his lawyer and self-professed “fixer,” Michael Cohen.

I’ve never thought “collusion with Russia” posed jeopardy. If there had been anything criminal to that storyline, the politicized anti-Trump factions in the intelligence and law-enforcement agencies would have leaked it. And, notwithstanding Trump’s nauseating nods to Putin, the administration has taken enough aggressive steps against Russia that it is past time for the Kremlin to broadcast the big kompromat file if it exists.

I’ve also never thought Special Counsel Robert Mueller’s other known angle, obstruction, posed a great risk. There is a line between foolishness and crime. For important policy reasons, a president should not weigh in with the FBI director on the merits of investigating a friend and political ally; and it would be better if he did not make personnel moves that could be perceived as efforts to influence witnesses or affect the course of an investigation. But as long as a president’s actions — e.g., firing the FBI director, discussing the possibility of pardons — are on their face legal and within his legitimate constitutional authority, I do not believe they can validly predicate an obstruction prosecution. (In theory, they could be grist for impeachment, which involves a political inquiry into abuse of power, not a legal proceeding to establish the essential elements of a statutory crime.)

The matter now under investigation by the FBI and federal prosecutors in the Southern District of New York (SDNY), however, is a very live criminal investigation. Anyone potentially connected to it should be worried.

...In the earlier column, I observed that it would be outrageous to raid a lawyer’s premises if the only “crime” under investigation were a campaign-finance infraction — which is generally treated as a civil-law issue for the Federal Election Commission to sort out...

That, however, is not what’s going on here — or, at least, I don’t think it is all that is going on here.

I believe that the government is investigating whether there was, in connection with Trump’s White House bid, a conspiracy to commit fraud and extortion for the purpose of silencing potentially compromising sources — specifically, people in a position to portray Donald Trump as a womanizer.

Clearly, the prosecutors regard Trump and Cohen as potential co-conspirators. That does not mean a conspiracy will be proven, but the possibility is certainly being scrutinized. Here, it is important to bear in mind a distinction from the Russia investigation: This is not a counterintelligence matter; the SDNY is unquestionably conducting a criminal investigation, and a federal judge would not have authorized search warrants absent finding probable cause that federal crimes may have been committed.

The Cohen search warrants sought, as the New York Times describes it, “all documents, including emails between Mr. Cohen and Mr. Trump, related to Mr. Cohen’s efforts to suppress negative publicity ahead of the 2016 election.” We know that these efforts specifically involve — but are not necessarily limited to — the burying of stories about Trump’s flings with pornographic actress Stephanie Clifford (a.k.a. Stormy Daniels) and former Playboy model Karen McDougal. Various reports also indicate that a former Trump-building doorman named Dino Sajudin was paid $30,000 to stay silent about an unverified claim that, nearly 30 years ago, Trump fathered a child out of wedlock with a young Trump Organization employee.

...As I explained earlier this week, the only thing protected in a lawyer’s office are attorney–client communications and work product. If Cohen had incriminating items unrelated to attorney work in his office, being a lawyer does not shield him from liability. Furthermore, if there is no attorney–client relationship on a particular matter, there is no privilege. Trump and Cohen both say that Cohen did not tell Trump about the Clifford arrangement. Sounds implausible, but on its face it means there was no attorney–client relationship regarding that transaction.

More important, if a lawyer is involved with a client in a criminal conspiracy, the crime-fraud exception to the attorney–client privilege strips their communications of privileged status. It seems evident that prosecutors are investigating on the theory that Clifford, McDougal, and perhaps others were defrauded or extorted into silence. The fact that they accepted money does not foreclose the possibility that their agreement to remain silent was procured, in part, by trickery or threats.
When Hillary Clinton inserted lawyers at various stages of her email scandal, in order to conceal the mishandling of classified information, the destruction of government records, and the obstruction of investigations, some of us pointed out that when lawyers become actors in criminal schemes, there is no privilege. That’s still true.

No wrongdoing has been established at this point. But the SDNY investigation is a serious matter.

For all the known facts, legal intricacies and sordid details, please read the entire column at NATIONAL REVIEW

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