While Trump is out there lamenting Robert Mueller “broke into” Michael Cohen’s office and how this is a “disgraceful situation.” The truth is that Trump’s own appointees—including, not insignificantly, Jeff Sessions, may have known, (or at least silently acquiesced to) Monday’s seizure at Cohen’s law office and hotel room.
The search on Michael Cohen’s office is reported to have been the product (in part) of a referral from Robert Mueller, but was carried out by the FBI at the behest of the U. S. Attorney for the Southern District of New York. For those keeping score at home, that person is no longer Preet Bharara (who you may remember from last year’s it’s-not-me-it’s-you drama), but rather, interim USA Geoff Berman, a Jeff Sessions appointee. Apparently, Berman recused himself because his appointment is awaiting confirmation so another superior at the Southern District likely signed off on the warrant.
Upon receiving the referral from Mueller, that prosecutor would have decided to begin some kind of investigation (or, far more likely, decided to simply add to an ongoing investigation) about that whole Stormy Daniels thing and likely some other accusations. Before the Southern District’s office would have requested a search warrant from a federal judge, it would have coordinated with its supervisor—the main Office of the Attorney General (“OAG”).
Prosecutors have many hoops to go through in order to ensure these raids are conducted legally and don’t violate attorney client privilege. Here’s the relevant excerpt from the U.S. Attorneys’ Manual regarding search warrants on attorneys:
.. In addition to obtaining approval from the United States Attorney or the pertinent Assistant Attorney General, and before seeking judicial authorization for the search warrant, the federal prosecutor must consult with the Criminal Division…
NOTE: Attorneys are encouraged to consult with the Criminal Division as early as possible regarding a possible search of an attorney’s office…
To facilitate the consultation, the prosecutor should submit the attached form… containing relevant information about the proposed search along with a draft copy of the proposed search warrant, affidavit in support thereof, and any special instructions to the searching agents regarding search procedures and procedures to be followed to ensure that the prosecution team is not “tainted” by any privileged material inadvertently seized during the search. This information should be submitted to the Criminal Division through the Office of Enforcement Operations. This procedure does not preclude any United States Attorney or Assistant Attorney General from discussing the matter personally with the Assistant Attorney General of the Criminal Division.
Berman’s office would have sent over some paperwork to main justice detailing exactly what they were hoping to seize from Michael Cohen’s office, and exactly how the evidence will be gathered. As my colleague, Rachel Stockman, discussed, the case of a seizure of documents from an attorney’s office, that “how” would invariably have been some version of “very, very carefully.”
The Criminal Division of the Office of the Attorney General (in other words, Session’s office) would have to have agreed (or at least been consulted) with the SDNY that the plan to raid Cohen’s office was appropriate (and that, for example, it wouldn’t be better to simply issue a subpoena or something less invasive). The acting Assistant Attorney General for the Criminal division is a man by the name of John Cronan, also a Trump appointee. But given the high stakes of this particular law enforcement effort, I find it difficult to imagine that Jeff Sessions was not at least informed about the whole thing.
“Under ‘normal circumstances’ I believe he would have absolutely been made aware that the SDNY was seeking to execute a searth warrant on the personal attorney of the President of the United States, especially given the subject matter that it likely related too — the alleged payment of monies on behalf of the President to Ms. Daniels,” explained former federal prosecutor Bill Thomas “The tricky part here however is whether this is part of the Russia investigation from which Attorney General Sessions has recused himself. That’s a gray area. The media reports seem to suggest that this search warrant is a “spinoff” from that investigation and was turned over to the SDNY by the Special Counsel. It’s hard to say for certain whether he knew, but I would think that the Deputy AG would have let him know that he (Rosenstein) or someone at main justice had approved the SW so Sessions would not have been blindsided by the news.”
Lawyers, particularly prosecutors, are aficionados in the art of covering asses; given that this case would have required heightened scrutiny anyway, I highly doubt anyone involved would have taken action without getting the okay from higher up. Of course, it’s tough to know whether Geoff Berman was eager to effectuate this particular seizure or whether he did so because he had no viable alternative; either way, though, he sure as hell didn’t act alone. There’s also the corresponding question of what exactly role Jeff Sessions played in this whole thing. Maybe he remained detached and neutral, or maybe he delighted in the opportunity to stick it to the president who has publicly ridiculed him for being “weak” and “beleaguered.” It’s theoretically possible he was unaware of the whole thing, but it’s also theoretically possible that the Trumps are just a normal American family.
The last thing any prosecutor wants is for a case to fail as a result of sloppy search and seizure practices — a truth that means that this incident definitely yielded paperwork. The Cohen raid is anything but a “rogue” move on anyone’s part, and there’s likely to be a chain of documents revealing just which federal employees helped make it happen.
Update at 12:09 to include information that Geoff Berman recused himself from the Cohen investigation.
This is an opinion piece. The views expressed in this article are those of just the author.