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The Access Hollywood Search Doesn’t Mean Trump Coordinated with Assange

As I noted, yesterday several outlets reported that among the things included in the FBI warrant for Michael Cohen’s premises was communications between Trump, Cohen, and others (whom I suspect to include Steve Bannon and Marc Kasowitz) “regarding the infamous ‘Access Hollywood'” video.

FBI agents who raided the home, office and hotel of Donald Trump’s personal lawyer sought communications that Trump had with attorney Michael Cohen and others regarding the infamous “Access Hollywood” tape that captured Trump making lewd remarks about women a month before the election, according to sources familiar with the matter.

[snip]

The search warrant also sought communications between then-candidate Trump and his associates regarding efforts to prevent disclosure of the tape, according to one of the sources. In addition, investigators wanted records and communications concerning other potential negative information about the candidate that the campaign would have wanted to contain ahead of the election. The source said the warrant was not specific about what this additional information would be.

From that, people on both the right and the left have assumed, without presenting hard evidence, that this means there must be a tie to Russia. Most often, people assume this must mean Trump somehow managed the events of October 7, when the Intelligence Committee report blaming Russia for the DNC hack, the Access Hollywood video, and the first Podesta emails all came out in quick succession.

That’s certainly possible, but thus far there’s no reason to believe that’s the case.

Mueller and Rosenstein referred this

That’s true, first of all, because after consulting with Rod Rosenstein, Robert Mueller referred this to the Southern District of New York for execution and prosecution, rather than dealing with it himself. He did that surely knowing what a sieve for leaks SDNY is, and therefore knowing that doing so would undercut his remarkably silent teamwork thus far.

In spite of a lot of reporting on this raid this week, we don’t yet have a clear understanding of why the two chose to refer it (or, tangentially, why interim SDNY US Attorney Geoffrey Berman recused himself from this matter).

There are two options. The first is that Rosenstein believed hush payments and taxi medallion money laundering sufficiently attenuated to the Russian investigation that it should properly be referred. In which case, the fact that it was referred is itself reason to believe that Mueller — even while he had abundant evidence supporting the search warrant — has no reason to believe those releases were orchestrated with Wikileaks, and therefore have no direct interest to his investigation (though they may cough up one to three witnesses who will be more willing to cooperate when faced with their own fraud indictments). In which case, the Access Hollywood video would be just another example, like the Stormy Daniels and the Karen McDougal payoffs, of Trump’s efforts to bury embarrassing news, using whatever means necessary.

The other option is that Mueller does have evidence that Trump in some way managed the October 7 events, which would be one of the most inflammatory pieces of evidence we would have heard of so far, but that there was some other reason to refer the matter.

Michael Cohen wasn’t serving as an attorney for much of the reported documents

The really good reason to refer the warrant would be so that SDNY would serve as a natural clean team, sorting through seized items for privileged communications, only to hand them back to Mueller’s team in DC once they’ve sorted through them. It’s an idea Preet Bharara and Matt Miller, among others, have floated.

Before we conclude that SDNY is only serving as a clean team for Mueller’s team here, consider that coverage has vastly overstated the degree to which the items being searched will fall under attorney-client privilege.

The search also sought information on Cohen’s taxi medallions, a business in which he has had really corrupt partners, some Russian, with their own legal problems, and one that has reportedly left Cohen with some debt problems that make his purported personal payment to Stormy Daniels all the more sketchy.

In addition, as soon as Trump claimed to know nothing of the hush payment to Daniels last Friday, the government could credibly claim that either Cohen was not representing Trump when paying off Daniels, or involved in fraud.

The NYT has reported that the raid also sought all communications between Cohen and National Enquirer’s top brass, communications that would in no way be privileged.

Even the reported communications about the Access Hollywood video may not be privileged. If they involved four people, then the only way they’d be covered by privilege is if they counted as campaign emails and Marc Kasowitz, not Cohen, was the attorney providing privileged advice in question. In that case, Cohen would have been playing the press contact role he often did during the campaign.

Still, just because Cohen was not playing the role of an attorney during most of the activities the FBI is interested in doesn’t mean the FBI won’t be really careful to make sure they don’t violate privilege, and I’m sure they’ll still use a taint team.

Mueller has already dealt with (at least) two sensitive attorney-client relationships in his investigation

Even on top of the eight members of the White House Counsel’s office who have spoken with the Special Counsel, Mueller’s team has dealt with (at least) two other sensitive attorney-client relationships.

The first was Melissa Laurenza, a lawyer for Paul Manafort whom he had write false declarations for FARA registry. Judge Amy Berman Jackson permitted Mueller’s team to ask her seven of eight proposed question after proving Manafort had used her services to engage in fraud.

More recently, we’ve gotten hints — but only hints — of what must be extensive cooperation from Skadden Arps and its partner Greg Craig, describing how Manafort and Gates laundered money to pay the firm loads of money to write a report they hoped would exonerate Ukraine’s persecution of Yulia Tymoshenko. While the cooperation of Skadden itself was probably effusive in its voluntary nature (the firm seems determined to avoid the taint that Tony Podesta’s firm has acquired in this process), Mueller did subpoena Alex Van der Zwaan and it’s unclear what methods the FBI used to obtain some of the materials he tried to hide from prosecutors.

Neither of those exchanges involves a search warrant. But they do show that Mueller is willing to take on the tricky issue of attorney testimony first-hand. Using SDNY as a clean team still may be the easiest option in the Cohen case, but Mueller clearly isn’t shying away from managing all such issues in-house in other cases.

The other possible explanations for the Access Hollywood search and the October 7 timing

Which brings us finally to the other possibilities behind the Access Hollywood search.

It’s certainly possible that the coincidental release of all these things was coordination, entirely orchestrated by the Trump campaign. But there are a number of reasons — on top of the fact that Mueller isn’t keeping this search far tighter under his own control — I think that’s not the most likely explanation.

Consider this story, arguing that the real story of Access Hollywood isn’t that it leaked on October 7 — the piece notes that David Farenthold had only received it that day — but that it didn’t leak earlier in the process, when it might have led Trump to lose the primary.

t is just impossible to believe that the tape not coming out at the start of Trump’s campaign, when logic dictates that it would have blown Trump instantly out of the water (before he was in a position where Republicans had no choice other than to keep backing him against the evil Hillary Clinton), was anything but a highly unethical political decision by someone at NBC. The fact that no one has ever even gotten an answer from NBC about how this could have happened is equally unfathomable and yet, given the news media’s overall incompetence, kind of expected.

[snip]

It has always struck me as EXTREMELY odd that it was the Washington Post, not NBC, who first released the tape on Friday Oct. 7, 2016, barely beating NBC which, it should be noted, was clearly ready to go with it immediately after the Post did. I presumed that perhaps NBC wanted this to be the case because it might take some of the focus off why they had not released it during the primaries (and thus chose not to prematurely kill off the media’s Golden Goose which was Trump’s ratings-friendly campaign).

However, there is another aspect of the Post being the outlet which got the big scoop that has always struck me as potentially very significant. The Post’s reporter, David Fahrenthold, has said that he was only made aware of the tape, via an unnamed source, THAT day — which is a clear indication that whomever was trying to get the Post to release it had decided to do so in tremendous haste. After all, if the source had planned it sooner they would have made contact with Fahrenthold well before then because he might have been out of pocket that day.

[snip]

For instance, what if it was actually someone from the TRUMP team who leaked the tape. At first glance, this seems ludicrous because no one thought that Trump would be anything but greatly harmed by the tape (though he clearly was not). But what if someone in Trump World got wind that the tape was about to be released and decided that stepping all over the Russia news (which would normally have dominated the narrative for the remainder of the campaign) would at least create the least bad outcome for them?

I don’t agree that the release was released when it was to distract from the Russia announcement that day. As I’ve long noted, in reality, the Access Hollywood distracted from the Podesta emails, effectively burying the most damning release in the bunch, the excerpts of Hillary’s speeches that even Democrats had been demanding she release since the primary. And while the Trump team might claim they didn’t control the release of the Podesta emails directly — and Roger Stone’s predictions that Wikileaks would release Clinton Foundation rather than Podesta emails were dead wrong — the Trump team at least knew something was coming (indeed, Wikileaks had made that clear themselves). So there’s little reason they would stomp on what they had long welcomed with the Access Hollywood tape. As this post alludes, I also think the Trump team and Russians or Wikileaks may have been squabbling over whether Wikileaks would release possibly faked Clinton Foundation emails that week, only to scramble when Wikileaks refused to release whatever the Peter Smith effort had gotten dealt to them.

Like the Mediate piece, I’m interested in the way that Steve Bannon had Clinton accusers all lined up to go that weekend (indeed, I noted how quickly Stone moved to that after having raised expectations for a Clinton Foundation release). But I also think there are some reasons to believe that attack was in the works for other reasons (though I agree it might reflect advance knowledge that the video might come out, or even that Stormy Daniels might come forward).  Finally, I don’t think the release came from Trump because of all the reports of Republicans trying to convince Trump to step down (though it’s possible the GOP dropped the video in one last bid to get him to do so).

One alternative narrative, then, is that the real story about the Access Hollywood suppression goes back months or years earlier, as one of the things Trump managed to suppress throughout the campaign, but something happened internally to breach that agreement. And, separately, that either Assange by himself, with Russian help, or with Trump assistance, timed the Podesta emails to come out as the Russian attribution was coming out. That is, it could be that the real story remains that whoever orchestrated the Wikileaks release did so in an attempt to bury the Russian attribution, but that the coincidental release of the Access Hollywood video in turn buried the Podesta emails.

Finally, it’s possible that Democrats got ahold of the Access Hollywood video and they released it to (successfully) drown out the Podesta emails, which they (and the intelligence community) also would have known were coming, but by doing so, they also drowned out the all-important Russian attribution in the process.

The point is, we don’t know. And nothing we know thus far about the process leading to this warrant or about the suppression and release of either the video or the women’s stories suggest it all took place that week of October. Trump’s usual m.o. is about suppression, not timing.

That said, I’m curious if this raid will reveal details about one other item Trump probably tried to suppress: the nude Melania photos that NYPost released on July 31, 2016, just as campaign season got going in earnest.

Michael Cohen’s Stormy Weather: Four Observations

As you’ve no doubt heard, the FBI raided Michael Cohen’s office, home, and hotel today. They were looking for stuff related to his payoff to Stormy Daniels … and other things, including (per the WaPo) “possible bank fraud, wire fraud and campaign finance violations.”

Some thoughts:

Geoffrey Berman, a symptom of Trump’s corruption, is responsible

As NYT first reported, this raid was a referral from Robert Mueller, not something executed by his team.

The prosecutors obtained the search warrant after receiving a referral from the special counsel in the Russia investigation, Robert S. Mueller III, according to Mr. Cohen’s lawyer, who called the search “completely inappropriate and unnecessary.” The search does not appear to be directly related to Mr. Mueller’s investigation, but most likely resulted from information that he had uncovered and gave to prosecutors in New York.

That means Mueller would have presented the evidence to Deputy Attorney General Rod Rosenstein, who would have made the decision to hand off the lead to Southern District of NY, with the folks there buying into not the investigation but the unusual raid of an attorney’s office.

Which, in turn, means it was approved by the US Attorney for SDNY. After Trump fired Preet Bharara (who was honing in on some of Trump’s corruption), he prioritized replacing Preet’s deputy, Joon Kim (who very recently returned to his former law firm). He replaced him not by elevating someone else, but by installing someone — Geoffrey Berman — he had interviewed personally. Berman is, if anything, a symbol of Trump’s abuse, not least because he hasn’t even been nominated formally. He’s a bureaucratic end-around.

And he had to have signed off on this raid (unless he recused, which will earn him the wrath of Trump all by itself).

Update: ABC did confirm yesterday that Berman did recuse. Daily Beast describes that Republican Robert Khuzami’s in charge.

[T]he recusal by Berman the developer’s son, the referral from Mueller is being handled by the deputy U.S. Attorney, Robert Khuzami. He is the son of two professional ballroom dancers.

That’s right, Mr. President, his dad and mom are ballroom dancers!

Deputy U.S. Attorney Khuzami is a Republican and even spoke at the 2004 Republican convention in support of George W. Bush.

But that will only make it harder for Trump to say he is the victim of Democrats.

And Khuzami is an expert at financial crimes, having ordered the arrest of 120 people for securities fraud in a single day during his earlier time as a Manhattan federal prosecutor. He subsequently served as head of enforcement at the U.S. Securities and Exchange Commission.

Trump’s Friday comments probably made this worse

This raid is not all about Stormy Daniels, but some of it is. Which suggests Trump’s comments on Friday, in which he disavowed the payment Cohen made on his behalf, probably made this worse.

Q Mr. President, did you know about the $130,000 payment to Stormy Daniels?

THE PRESIDENT: No. No. What else?

Q Then why did Michael Cohen make those if there was no truth to her allegations?

THE PRESIDENT: Well, you’ll have to ask Michael Cohen. Michael is my attorney. And you’ll have to ask Michael Cohen.

Q Do you know where he got the money to make that payment?

THE PRESIDENT: No, I don’t know. No.

By claiming — almost certainly falsely — not to have known about the payment to Daniels, Trump probably scotched any claim Cohen might make to privilege. It also meant that Cohen either claimed to be representing Trump falsely, or is lying in sworn documents about doing so.

This raid would have had to have been approved over some time, not Friday afternoon. But one way or another, I imagine these comments made it easier for DOJ and a judge to approve the raid, at least with respect to the Stormy Daniels material.

Manafort will shortly get this raid approved for Mueller

Last week, in my analysis of the Mueller filing explaining his mandate, I suggested he was getting some things approved that weren’t relevant to the Manafort challenge but were relevant to the larger investigation.

Like this:

The filing includes a quotation from DOJ’s discussion of special counsels making it clear that it’s normal to investigate crimes that might lead someone to flip.

[I]n deciding when additional jurisdiction is needed, the Special Counsel can draw guidance from the Department’s discussion accompanying the issuance of the Special Counsel regulations. That discussion illustrated the type of “adjustments to jurisdiction” that fall within Section 600.4(b). “For example,” the discussion stated, “a Special Counsel assigned responsibility for an alleged false statement about a government program may request additional jurisdiction to investigate allegations of misconduct with respect to the administration of that program; [or] a Special Counsel may conclude that investigating otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

That one is technically relevant here — one thing Mueller is doing with the Manafort prosecution (and successfully did with the Gates one) is to flip witnesses against Trump. But it also makes it clear that Mueller could do so more generally.

So when Amy Berman Jackson rules against what was ultimately a desperate bid by Trump’s campaign chair, she’ll be implicitly approving of practices like “investigating otherwise unrelated allegations against a central witness” if it’s “necessary to obtain cooperation.”

And just to be sure, Michael Dreeben will be on hand for this argument.

Trump has no appropriate lawyer to this task

Trump is wailing right now about this raid.

So I just heard they broke into the office of one of my personal attorn[ey]s…It’s a disgraceful situation. It’s a total witch hunt. I’ve been saying it for a long time. I’ve wanted to keep it down. I’ve given over a million pages in documents to the special counsel. They continue to just go forward and here we are talking about Syria, we’re talking about a lot of serious things…and I have this witch hunt constantly going on for over 12 months now. Actually it’s much more than that. You could say right after I won the nomination it started.

When I saw this, when I heard about it, that is a whole new level of unfairness.

This has been going on. I saw one of the reporters who is not necessarily a fan of mine…he said this is now getting ridiculous. They found no collusion what so ever with Russia.

This is the most biased group of people. These people have the biggest conflicts of interest I have ever seen. Democrats — all. Either Democrats or a couple of Republicans who worked for President Obama. They’re not looking at the other side — Hillary Clinton… all of the crimes that were committed, all of the things that happened that everybody is very angry about from the Republican side and the independent side. They only keep looking at us.

They raided the office of a personal attorney early in the morning. It’s a disgrace. So we’ll be talking about it more.

[snip]

The stock market dropped a lot today as soon as they heard the noise you know of this nonsense that was going on. It dropped a lot. It was up — it was way up. It dropped quite a bit at the end. That we have to go through that. We’ve had that hanging over us from the very, very beginning. And yet the other side they’re not even looking. And the other side is where there are crimes and those crimes are obvious — lies under oath all over the place, emails that are knocked out, that are acid washed and deleted, 33,000 emails were deleted after getting a subpoena from Congress. And nobody bothers looking at that.

Amid the wailing, Trump suggested he might fire Mueller.

“Why don’t I just fire Mueller? Well, I think it’s a disgrace what’s going on. We’ll see what happens,” Trump said. “Many people have said you should fire him. Again, they found nothing. And in finding nothing, that’s a big statement.”

As he nudges closer to firing Mueller, remember: after having chased John Dowd off, Trump has no competent defense attorney.

He may well fire Mueller. But he has no one to guide him out of the morass that doing so will cause.