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It’s Not the Campaign Finance Violation or the Simple Private Transaction, It’s the Conspiracy to Commit Fraud

Andrew McCarthy has finally come around to the criminal behavior of the President, though he has found it in Trump’s hush payments rather than his conspiring with Russians. But, in typical fashion, McCarthy stops short of the hard-charging prosecutor he once was, and suggests Trump may have a way out of his crime because campaign finance law favors the candidate.

This is not to suggest that the president is without cards to play. Campaign finance violations have a high proof threshold for intent. President Trump could argue that because there was no spending limit on his contributions, he did not think about the campaign-finance implications, much less willfully violate them.

There is, furthermore, a significant legal question about whether the hush-money payments here qualify as “in-kind” campaign contributions.

McCarthy does this even while rightly emphasizing the language in Michael Cohen’s SDNY sentencing memo that focuses on transparency.

First, Cohen’s commission of two campaign finance crimes on the eve of the 2016 election for President of the United States struck a blow to one of the core goals of the federal campaign finance laws: transparency. While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows. He did so by orchestrating secret and illegal payments to silence two women who otherwise would have made public their alleged extramarital affairs with Individual-1. In the process, Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election.

It is this type of harm that Congress sought to prevent when it imposed limits on individual contributions to candidates. To promote transparency and prevent wealthy individuals like Cohen from circumventing these limits, Congress prohibited individuals from making expenditures on behalf of and coordinated with candidates. Cohen clouded a process that Congress has painstakingly sought to keep transparent.

This language very clearly signals that SDNY believes those involved in this crime thwarted the transparency requirements imposed by campaign finance law. It’s not just the payment itself, it’s the fraud conducted on regulatory bodies designed to ensure transparency. And, equally clearly, SDNY lays out that Cohen did not act on his own.

So even while McCarthy notes that Trump was named personally, he deemphasizes how many players worked together to coordinate these hush payments: In addition to Trump, Cohen’s hush payment lawyer Keith Davidson, the National Enquirer, its Chairman David Pecker, its Editor Dylan Howard on the Karen McDougal payment:

With respect to both payments, Cohen acted with the intent to influence the 2016 presidential election. Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments. (PSR ¶ 51). In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1. (PSR ¶¶ 41, 45)

And then Davidson, Howard, and Trump Organization, with the involvement of several of its executives (probably including one of Trump’s spawn) on the Stormy Daniels payment.

Executives of the Company agreed to reimburse Cohen by adding $130,000 and $50,000, “grossing up” that amount to $360,000 for tax purposes, and adding a $60,000 bonus, such that Cohen would be paid $420,000 in total. Executives of the Company decided to pay the $420,000 in monthly installments of $35,000 over the course of a year. (PSR ¶¶ 52-53). At the instruction of an executive for the Company, Cohen sent monthly invoices to the Company for these $35,000 payments, falsely indicating that the invoices were being sent pursuant to a “retainer agreement.” The Company then falsely accounted for these payments as “legal expenses.”

Importantly, the sentencing memo focuses on the “sophisticated means” that Cohen used — the shell companies and the structured repayments — pointing to fraud, not just campaign finance violations.

The “sophisticated means” enhancement is addressed to Cohen’s use of complex means to carry out and disguise his crimes. For example, Cohen created shell companies for his commission of the campaign finance crimes, including one shell entity (Resolution Consultants) for use in the transaction with Woman-1 and another shell entity (Essential Consultants) for use in the transaction with Woman-2. (PSR ¶¶ 43, 47.) Cohen also agreed to structure the reimbursement for his payment to Woman-2 in monthly installments, and to disguise those payments by creating fake invoices that referenced a non-existent “retainer.” (PSR ¶ 54.)

While it is true that Cohen pled guilty to campaign finance violations, that’s not what SDNY lays out in this memo. Rather, they lay out conspiracy to defraud the United States, which carries a five year prison sentence, on top of any campaign finance or money laundering prosecution to carry out that fraud. That’s the same charge that Trump appointee Dabney Friedrich just upheld for the Russian trolls that helped Trump win, the same charge that Rick Gates and Paul Manafort have pled guilty to, the same ConFraudUS that Mueller has built all his interlocking indictments around. And there, it’s not so much the intent or success of the attempt to thwart campaign finance oversight that matters, it’s the conspiracy to do it and the secrecy and sophisticated means by which you do it.

So Trump may want to claim this is a “simple private transaction,” just like all the other hush payments he has orchestrated with his buddy Pecker over the years.

But when you carry out such “simple private transactions” in the context of an election then it becomes conspiracy to commit fraud.

And to reiterate: it’s not just Trump himself that can be charged with ConFraudUS for this, it’s also The Company and whichever spawn served as The Executive seeking to hide the payback for Cohen’s hush payments.

Heck. Even the NYT is beginning to figure this out.

What it means is that both Trump (after he’s no longer President) and his company (as soon as SDNY gets around to charging it and its executives) are on the hook for cheating to get elected.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Benefits and Pitfalls of Having Former FEC Commissioner Don McGahn as Your Campaign Lawyer

Of all the posts I’ve written about Roger Stone, I’m only aware of two that he responded to directly. One was this post from September 5, laying out how stupid Stone was for using Jerome Corsi’s August 31 report as a cover story for his August 21 “time in the barrel” tweet. We now know that the very next day, Jerome Corsi would tell material lies to Mueller’s team in an attempt to sustain a cover story that started with that August 31 report. Indeed, we also know that 16 days after I wrote that post, Corsi would testify to the grand jury that the August 31 report was written entirely to offer cover for that August 21 tweet (and, I suspect, Stone’s August 15 one).

Perhaps before this is over I’ll get the opportunity to play poker with Roger Stone.

The other post Stone reacted against — and he reacted even more aggressively — was this post focusing on Don McGahn’s history of helping Trump’s people get out of campaign finance pickles.

To be fair to rat-fucker Roger, the post actually laid out how Don McGahn has been covering for Trump’s campaign finance problems for seven years, not just Roger’s.

Of significant import, that history started in the follow-up to events from 2011, when Trump’s then-fixer, a guy named Michael Cohen, set up a presidential exploratory committee using Trump Organization funds. Democrats on the FEC believed that violated campaign finance law, but a guy named Don McGahn weighed in to say that FEC couldn’t use public reporting to assess complaints.

During McGahn’s FEC tenure, one of those he helped save from enforcement action was Trump himself. In 2011, when the future president-elect was engaged in a high-profile process of considering whether to enter the 2012 race for the Republican presidential nomination, Trump was formally accused in an FEC complaint of violating agency regulations. The case was dismissed on a deadlocked vote of the FEC commissioners.

A four-page complaint filed by Shawn Thompson of Tampa, Fla., accused Trump of illegally funneling corporate money from his Trump Organization into an organization called ShouldTrumpRun.com. McGahn and fellow FEC Republicans Caroline Hunter and Matthew Petersen voted to block FEC staff recommendations that Trump be investigated in the matter—designated Matter Under Review (MUR) 6462.

Ultimately, Trump opted not to run for president in 2012. Nonetheless, FEC staff attorneys concluded his activities before that decision may have violated campaign finance rules regarding money raised to “test the waters” for a candidacy. A staff report from the FEC Office of General Counsel, based largely on news articles and other documents about Trump’s flirtation with running for president—including Trump’s own quoted statements— recommended that the commissioners authorize a full FEC investigation backed by subpoena power.

FEC Democrats voted to pursue the recommended probe, but the votes of McGahn and the other FEC Republicans precluded the required four-vote majority needed for the commission to act.

McGahn and Hunter issued a “ statement of reasons” explaining their votes in the Trump matter in 2013. The 11-page statement blasted FEC staff attorneys in the Office of General Counsel for reviewing volumes of published information regarding Trump’s potential 2012 candidacy in order to determine whether to recommend that the FEC commissioners vote to authorize a full investigation. McGahn and Hunter argued that the FEC counsel’s office was prohibited from examining information other than what was contained in the formal complaint submitted in the case.

The Office of General Counsel shouldn’t be allowed to pursue an “unwritten, standardless process whereby OGC can review whatever articles and other documents not contained in the complaint that they wish, and send whatever they wish to the respondent for comment,” the Republican commissioners wrote.

In the context of rat-fucking Roger, in 2016, McGahn succeeded in getting a bunch of Democrats’ lawsuits against Stone’s voter suppression efforts in swing states thrown out.

But the history these sleazeballs all share is relevant for a reason explicitly raised in the SDNY Cohen filing last night. In the middle of the most shrill passage in the entire shrill filing (one that also uses language that might be more appropriate in — and is likely to eventually show up in — a ConFraudUs charge), SDNY notes that Cohen can’t play dumb about campaign finance law because of his 2011 run-in with the law.

Cohen’s commission of two campaign finance crimes on the eve of the 2016 election for President of the United States struck a blow to one of the core goals of the federal campaign finance laws: transparency. While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows. He did so by orchestrating secret and illegal payments to silence two women who otherwise would have made public their alleged extramarital affairs with Individual-1. In the process, Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election.

It is this type of harm that Congress sought to prevent when it imposed limits on individual contributions to candidates. To promote transparency and prevent wealthy individuals like Cohen from circumventing these limits, Congress prohibited individuals from making expenditures on behalf of and coordinated with candidates. Cohen clouded a process that Congress has painstakingly sought to keep transparent. The sentence imposed should reflect the seriousness of Cohen’s brazen violations of the election laws and attempt to counter the public cynicism that may arise when individuals like Cohen act as if the political process belongs to the rich and powerful.

Cohen’s submission suggests that this was but a brief error in judgment. Not so. Cohen knew exactly where the line was, and he chose deliberately and repeatedly to cross it. Indeed, he was a licensed attorney with significant political experience and a history of campaign donations, and who was well-aware of the election laws. 11 In fact, Cohen publicly and privately took credit for Individual-1’s political success, claiming – in a conversation that he secretly recorded – that he “started the whole thing . . . started the whole campaign” in 2012 when Individual-1 expressed an interest in running for President. Moreover, not only was Cohen well aware of what he was doing, but he used sophisticated tactics to conceal his misconduct.

11 Cohen was previously the subject of an FEC complaint for making unlawful contributions to Donald Trump’s nascent campaign for the 2012 presidency. The complaint was dismissed for jurisdictional reasons, but it certainly put Cohen on notice of the applicable campaign finance regulations. See In the Matter of Donald J. Trump, Michael Cohen, et al., MUR 6462 (Sept. 18, 2013). [my emphasis]

To the extent that Cohen and his sole client, Individual-1, committed campaign finance crimes in 2016 — especially the corporate funding of campaign activities — they can’t claim to be ignorant, because they only narrowly avoided proceedings on precisely this point in 2013.

That’s all the more true given that that very same FEC commissioner was their campaign lawyer.

Now, any discussion about Cohen’s knowledge of campaign finance law in this instance is one thing if you’re talking whether SDNY will charge Trump and his company with conspiracy to violate campaign finance laws because Cohen bought off several women. But then there’s the matter of SuperPACs that illegally coordinated with Trump Org, and other dark money groups — including Stone’s — that coordinated with the campaign. Given that the donation Manafort lied about to Mueller is reportedly from Tom Barrack’s SuperPAC (along with his lies about whether he and Barrack met with Konstantin Kilimnik right after he got fired), that may be a campaign finance problem as well. Kilimnik partner Sam Patten has already pled guilty for using a straw donor to hide the foreign oligarchs ponying up to attend Trump’s inauguration, so that’s a second campaign finance guilty plea from people close to Trump and his aides, in addition to Cohen’s.

And all that’s before you get to the big one, Russia’s direct assistance to the campaign as part of a quid pro quo, and the stakes of whether any of the players can be said to know campaign finance law go up.

In short, Trump’s campaign was a serial campaign finance disaster in 2016, even in spite of having former FEC commissioner Don McGahn at their legal helm. And even if they weren’t running these legal questions by McGahn, Individual-1 and his fixer, at least, were also (as the government has already now alleged) “on notice of the applicable campaign finance regulations.”

Remember: After meeting with prosecutors for 20 hours late last year, McGahn had something around another 10 quality hours with Mueller’s prosecutors. The assumption has always been that those interviews were exclusively about the cover-up (though this May AP story on Tom Barrack’s own questioning describes that, “Investigators have for months been inquiring about the Trump campaign’s finances and compliance with federal election law,” and it doesn’t even include a single one of the crimes laid out here).

But it’s highly likely McGahn has given significant testimony about the (campaign finance) crime.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

That Ongoing Grand Jury Investigation that Michael Cohen’s Loot Is Feeding

On Thursday, the NYT asked for the judge in the Michael Cohen case to unseal the warrant materials for the things seized on April 9, as well as the email accounts that had been searched prior to that. In their request, NYT attorney David McCraw asserted,

First, any risk of impairing law enforcement interests is minimal because the Government’s investigation of Mr. Cohen has concluded. … More to the point, Mr. Cohen has pleaded guilty to all the charges against him. And to the extent there are any ongoing investigations related to Mr. Cohen’s, any sensitive law enforcement information in the documents can be redacted.

As noted by the NYT, both Cohen and the government opposed the request.

A day later, the prosecution team wrote the judge, asking for three weeks to respond and permission to file part of its objection in sealed form

The Government intends to file an opposition to this request, and seeks permission to do so no later than November 2, 2018. In addition, because responding to this request requires describing, inter alia, the effect that unsealing would have on an ongoing grand jury investigation, the Government requests permission to file a portion of its response ex parte and under seal.

The government got two weeks, and the permission to file some of this under seal.

In response to this, I’ve seen a lot of people who assume the ongoing investigation is into Cohen — and it may well be. But the prosecution letter doesn’t say that, and given the way Cohen pled guilty in a rush to beat the campaign season and promptly started begging all prosecutors to start asking him questions, there’s no reason to believe that’s the case.

The reporting on the scope of the warrants against Cohen was always very vague, focusing on the Stormy Daniels part to the exclusion of the taxi medallion and fraud part. Just the taxi stuff was included in his guilty plea. So there’s still fraud (which is probably why Cohen pled guilty so quickly).

Some of the other crimes that might have been covered in Cohen’s warrant — such as the pay to play associated with the Inauguration — would overlap with Mueller’s investigation (and Cohen has spent some days chatting with Mueller’s prosecutors). But it’s certainly possible that (as I’ve suspected), that pay to play has already gotten spun off from Mueller’s investigation and is being led out of NY.

And, of course, there are the Trump Organization people — Executive 1 and Executive 2 (one of whom may well be a spawn) mentioned in Cohen’s plea who might also be targeting. Or, of course, Individual 1, Trump himself.

Cohen May Be Shopping a Cooperation Agreement; It’s Not Clear Anyone Is Buying

In the wake of yesterday’s twin guilty verdicts, the punditocracy has asserted, based on an assumption that Michael Cohen knows everything Trump did, that his guilty plea poses a bigger problem for Trump than Paul Manafort’s guilty verdict right now.

I’m not convinced. Indeed, I have real questions about whether Cohen faces anything other than his own charges in the Russian conspiracy case.

Trump has seen everything Cohen has on him

I’ll have more in a bit about the Cohen-Trump challenge to SDNY’s use of a clean team to sort out privileged materials. It was undoubtedly the right decision on Kimba Wood’s part for the legitimacy of the Cohen prosecution. But what it did for Cohen is make him (or Trump) spend a lot of money to give Trump a view of every piece of dirt he had on him.

The people who believe Cohen is a bigger threat to Trump than Manafort are premising that on four month old statements from Trump’s lawyers who have, in the interim, not only reviewed everything SDNY seized from Cohen, but also proven they underestimate the scope of Trump’s risk in the Russia investigation, and not just from Don McGahn.

Trump may have pre-empted what risk Cohen has

On TV this morning, Lanny Davis claimed that Trump’s lawyers already admitted to Mueller that he directed Cohen to pay off Karen McDougal and Stormy Daniels.

There is no dispute that Donald Trump committed a crime. No dispute because his own lawyers said to the Special Counsel in a letter that he directed — that’s the word they used — Michael Cohen to do these payments.

It’s unclear what this letter is. It’s unclear why Trump’s lawyers would address it to Mueller rather than SDNY (aside from the fact that the Trump team never quite understood that under Rod Rosenstein’s supervision, Mueller referred the hush payments to SDNY, or perhaps the fact that suggesting Trump’s second conspiracy to cheat to get elected must be part of the investigation into Trump’s first conspiracy to cheat to get elected).

But if it is true that Trump’s team already admitted this to DOJ, regardless of who at DOJ, then it really undermines any value of having Cohen say so as part of a plea deal with regards to the hush payments. Trump’s a vindictive fuck, and depriving Cohen any value for turning on him would be the kind of thing he would do on “principle.”

Davis’ televised proffers don’t hold up to scrutiny

Since yesterday, Davis has publicly claimed Cohen has the goods on Trump’s charity (probably true) and the Russian hack. [Update: AP reports NYS has subpoenaed Cohen with regards to Trump’s foundation.]

In response to the latter claims, Richard Burr and Mark Warner issued a statement noting that that claim conflicts with Cohen’s past testimony.

We have obviously followed today’s reporting about Michael Cohen with great interest. He appears to be pleading guilty to very serious charges, however, we have no insight into any agreements he and his legal team have allegedly reached with prosecutors in New York.

What we can say is that we recently reengaged with Mr. Cohen and his team following press reports that suggested he had advance knowledge of the June 2016 meeting between campaign officials and Russian lawyers at Trump Tower. Mr. Cohen had testified before the Committee that he was not aware of the meeting prior to its disclosure in the press last summer. As such, the Committee inquired of Mr. Cohen’s legal team as to whether Mr. Cohen stood by his testimony. They responded that he did stand by his testimony.

We hope that today’s developments and Mr. Cohen’s plea agreement will not preclude his appearance before our Committee as needed for our ongoing investigation.

The truth is probably that Cohen had knowledge that Trump knew about some release — like the July release to Wikileaks — before it happened. But Mueller already has testimony to that effect, including from Omarosa, who as far as we know didn’t say it in an attempt to get out of criminal exposure herself.

And Cohen’s definitely not getting a cooperation agreement by working the press

Even SDNY hates when potential cooperating witnesses play the press; Michael Avenatti got in trouble for scheduling a press appearance around testimony. But that’s all the more true of Mueller. Indeed, a central part of Mueller’s argument that Papadopoulos offered no cooperation to prosecutors is that he took part in a NYT story in December.

Following the proffer sessions in August and September 2017, the government arranged to meet again with the defendant to ask further questions in late December 2017. However, upon learning that the defendant had participated in a media interview with a national publication concerning his case, the government canceled that meeting. (PSR ¶ 50). The government is aware that the defendant and his spouse have participated in several additional media interviews concerning his case.

Cohen has been all over the media since before they first proffered testimony (which as I understand it was some time ago). Having done that, there was little chance Mueller was going to buy what Cohen was offering publicly.

Mueller may intend to indict Cohen for his own role in the conspiracy

This part is speculative. But I think Mueller may be at the point where he’s preserving the maximal criminal liability of key conspirators. Already, he has limited the protection offered to cooperating witnesses aside from Rick Gates. Of particular note, Mike Flynn (whose latest sentencing continuation just got extended 24 days, to the date Manafort’s next trial starts) is only protected for the lies he told FBI and a FARA filing; he’s still exposed for his own role in the Russia conspiracy.

So it may well be that Mueller won’t give Cohen a cooperation agreement because he believes he can get to Cohen’s exposure on the Russia conspiracy (via witnesses like Felix Sater, who has been “cooperating’ for some time) with the evidence he has, and so sees no reason to limit that exposure for evidence he also already has from other witnesses.

As I disclosed last month, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Trump’s Pecker Got Him in Legal Trouble Before Conspiring with Russia Did

It was a three ring circus among top Trump advisors today: Jurors found Paul Manafort guilty on 8 counts (the jury was hung on the other 10); Michael Cohen pled guilty to 8 counts, and Mueller’s team continued Mike Flynn’s sentencing for 24 days, with a status report due September 17.

The big takeaway, however, is that Trump got named in a criminal information for his extramarital affairs before his conspiring with Russia did. [I’ve rewritten this headline, replacing “Dick” with “Pecker,” in honor of the National Enquirer’s role and so Democracy Now can show the headline tomorrow when I appear.]

Trump’s hush payments make it into Michael Cohen’s guilty plea

The Cohen plea — which developed quickly and reportedly came under pressure to plead before an indictment got filed this week — covered five tax charges, one false statement to a financial institution, one unlawful corporation contribution tied to Cohen’s quashing of a National Enquirer story on Karen McDougal, and one excessive campaign contribution tied to Cohen’s hush payment to Stormy Daniels. The first reference to Donald Trump — named as Individual 1 — is the 46th word in the in the criminal information.

From in or about 2007 through in or about January 2017, MICHAEL COHEN, the defendant, was an attorney and employee of a Manhattan-based real estate company (the “Company”). COHEN held the title of “Executive Vice President” and “Special Counsel” to the owner of the Company (“Individual-1”).

Cohen will reportedly face three to five years in prison and substantial fines.

In his plea, Cohen stated that he made the hush payments at the direction of a candidate — Trump was not named — knowing the payments violated campaign finance law. Here’s how those paragraphs appear in the information:

42. From in or about June 2016, up to and including in or about October 2016, in the Southern District of New York and elsewhere, MICHAEL COHEN, the defendant, knowingly and willfully caused a corporation to make a contribution and expenditure, aggregating $25,000 and more during the 2016 calendar year, to the campaign of a candidate for President of the United States, to wit, COHEN caused Corporation-1 to make and advance a $150, 000 payment to Woman-1, including through the promise of reimbursement, so as to ensure that Woman-1 did not publicize damaging allegations before the 2016 presidential election and thereby influence that election.

44. On or about October 27, 2016, in the Southern District of New York and elsewhere, MICHAEL COHEN, the defendant, knowingly and willfully made and caused to be made a contribution to Individual-1, a candidate for Federal office, and his authorized political committee in excess of the limits of the Election Act, which aggregated $25,000 and more in calendar year 2016, and did so by making and causing to be made an expenditure, in cooperation, consultation, and concert with, and at the request and suggestion of one or more members of the campaign, to wit, COHEN made a $130,000 payment to Woman-2 to ensure that she did not publicize damaging allegations before the 2016 presidential election and thereby influence that election.

For all the legal trouble his top aides have gotten in, this is the first time (aside from his cameo calling on Russia to find Hillary’s “missing” emails in the GRU indictment) where Trump has been implicated directly.

Thus the headline: His dick [update: Pecker] got him in trouble before his conspiring with Russia did.

There was reportedly not cooperation agreement attached to this plea. I suspect he will be or already has cooperated, however.

Contrary to what some of NYT’s hacks say, this doesn’t mean his dick got him in more trouble than he’ll face in the Russian inquiry: just that that will take a bit longer.

Update: As bmaz noted to me, once he pleads on the Stormy Daniels charge, he loses his Fifth Amendment rights, so the Daniels suit against him can go forward — and with it the deposition of Trump.

Like Cohen, Paul Manafort is a tax cheat

Literally at the same time Cohen was pleading guilty, the jury in the Manafort case declared themselves hopelessly at odds on 10 charges, but found Manafort guilty of 8. Like Cohen, he is guilty of 5 counts of tax fraud. He was found guilty on one FBAR charge for not identifying foreign holdings (my suspicion in the other FBAR charges were hung because it was unclear whether the corporations that held the money faced the same liability). And Manafort was found guilty on two of the bank fraud charges. Per Politico, he was not found guilty on the charges involving payoffs related to the Trump campaign.

Manafort’s next trial starts in 27 days, and if Mueller wants a retrial on the remaining 10 charges here he could get that. Though he has bigger fish to fry.

Mueller thinks Mike Flynn will be done cooperating in the near future

While it’s far less sexy than the trouble Trump’s dick got him in, I’m most fascinated by the status report in the Mike Flynn case. While they’re continuing the sentencing process again (meaning he’s still cooperating), they’re asking for a status report on September 17, the same 27 days away as Manafort’s next trial.

That suggests they may be done with whatever they need Flynn to do in the near future.

Things are picking up steam.

For Family and Country: The Questions Michael Cohen Won’t (Yet) Answer

Yesterday, Michael Cohen continued his public campaign to get an invitation from Robert Mueller to flip on Donald Trump with a(nother) interview with George Stephanopoulos. This interview clearly reflects the coaching of his new attorney, Guy Petrillo.

“Once I understand what charges might be filed against me, if any at all, I will defer to my new counsel, Guy Petrillo, for guidance.”

And while Cohen has actually always been complimentary of the FBI agents who raided his home, he has gotten downright effusive about the fact-finding wonders of federal prosecutors, and even condemned the Russian attack.

“I respect the prosecutors. I respect the process,” Cohen said. “I would not do or say anything that might be perceived as interfering with their professional review of the evidence and the facts.”

[snip]

“I don’t like the term witch hunt,” he said, adding that he condemned Russia for interfering in the 2016 election.

“As an American, I repudiate Russia’s or any other foreign government’s attempt to interfere or meddle in our democratic process, and I would call on all Americans to do the same,” he said.

The big headline quote comes where he vows to put his family and country ahead of Donald Trump’s interests (the latter, in my mind, is the more interesting).

“To be crystal clear, my wife, my daughter and my son, and this country have my first loyalty.”

I’m most interested, though, in the questions that Petrillo has coached Cohen to remain silent on. Cohen does answer a few questions, asserting Mueller will find he had no improper dealings with Russia and that those who attended the June 9 meetings were idiots for doing so.

Cohen believes Mueller will not find any evidence that he had any illegal or improper dealings with the Russians.

But Cohen did criticize those members of the Trump campaign who participated in that now infamous Trump Tower meeting in June of 2016 with several Russians after being promised dirt on Hillary Clinton.

“I believe it was a mistake by those from the Trump campaign who did participate,” he said. “It was simply an example of poor judgment.”

But Cohen smartly got quiet when asked about crimes he himself might be accused of.

Prosecutors in New York’s Southern District are investigating Cohen for alleged violations of election law and possible financial crimes associated with his personal business dealings.

He has not been charged with any crime. But on the advice of his attorney, Cohen declined to address specific questions about matters currently under investigation.

He won’t repeat his earlier answers as to whether he or Trump decided to pay off Stormy Daniels.

I asked Cohen if the president directed him to make that payment or promised to reimburse him. In the past, Cohen has said that he acted on his own initiative.

Not this time.

“I want to answer. One day I will answer,” he said. “But for now, I can’t comment further on advice of my counsel.”

The big one, though, pertains to whether Cohen knew whether Trump knew about the June 9 Trump Tower meeting before it happened.

When I asked Cohen if President Trump knew about that meeting before it happened, he declined to answer.

“I can’t comment under advice of my counsel due to the ongoing investigation by the U.S. Attorney’s Office in the Southern District of New York,” Cohen said.

That information — what Trump knew about the June 9 meeting before it happened — is what Cohen is publicly offering up to Mueller’s team in an effort to minimize his own criminal penalties.

Which pretty much confirms that Trump did know about it.

SDNY Will Be Forced to Talk about Crimes Involving the President Today

At 2PM today, in a court room in southern Manhattan, a lawyer someone hired last Wednesday to represent Donald Trump, Joanna Hendon, will push prosecutors from the Southern District of New York to explain that they have probable cause to believe crimes involving the president have been committed. Here’s why.

Last Monday, the FBI served Michael Cohen warrants listing crimes known to pertain to his taxi medallion businesses and his efforts to suppress information about Trump’s embarrassing sexual behavior, though the warrants themselves probably listed bank fraud, wire fraud, and campaign finance violations as the crimes. “[T]he riders to the search warrants – copies of which have been provided to Cohen – identify the federal criminal statutes under which Cohen is being investigated,” the government emphasized in its memo.

The taxi medallion stuff has no known tie to Trump. The hush arrangements clearly do, but at least in the case of Stormy Daniels, Trump and Cohen have both publicly denied an attorney-client role, which the government pointed out. “President Trump has publicly denied knowing that Cohen paid Clifford, and suggested to reporters that they had to ‘ask Michael’ about the payment.” It’s certainly possible Cohen has claimed to have firewalled Trump in other hush payments in the same effort to avoid campaign finance violations; to the extent that Trump has not been a formal party in those agreements, he may have likewise waived privilege.

And then there’s the crime-fraud exception to privilege, which the government invokes four times in its response to Cohen, describing how an investigative team can legally access such materials without approval from Cohen or his client if a judge okays it.

[T]he Filter Team will review them to determine whether the material is: (1) not privileged, (2) potentially privileged, (3) requires redaction, and/or (4) potentially meets an applicable exception (for example, the crime-fraud exception). To be clear, under no circumstances will a potentially privileged document or a document potentially subject to the crime-fraud exception be provided to or described to the Investigative Team without the consent of the privilege holder or his/her counsel, or the court’s approval. If the Filter Team is unable to clarify a document’s category, or if there is an exception to the privilege that applies to particular material, such as the crime-fraud exception, or any waiver of the privilege – the Filter Team will (1) confer with counsel for the privilege holder at the appropriate time and before any such material is shared with the Investigative Team and, if no agreement can be reached, submit the material under seal to an appropriate court for a determination as to whether the material is privileged;

[snip]

In the face of inaccurate and/or overbroad claims of privilege, the USAO-SDNY would be seriously prejudiced if it were not able, through a Filter Team, to evaluate the validity of such claims. As Judge Barbara Jones explained in permitting review by a filter team, “[w]ithout the benefit of such a review, the privilege team would likely be unable to argue, for example, that no attorney-client privilege attached to the communication because of the crime-fraud exception, or that a document should be available for use at trial, regardless of work-product contents, because of necessity and unavailability by other means.” [my emphasis]

Even though the FBI informed Cohen he was raided as the subject of an investigation pertaining to his own business, he fought the memo by invoking the part of the US Attorney’s Manual pertaining to witnesses, not subjects, which SDNY corrected.

Cohen’s reliance on the USAM misplaced, but he invokes the wrong section. Cohen cites to section 9-19.220 of the USAM, which, as Cohen points out, applies to “attorneys who are not suspects” of a criminal investigations. See Br. at 22; USAM § 9-19.220 (noting the procedure to be followed when privileged materials are sought from a “disinterested third party”). Cohen, however, is not the disinterested third party contemplated by the USAM. The applicable provision is that which applies when the attorney is a “suspect, subject or target” of the investigation.

And even though he was told he was being investigated for crimes unrelated to it, his lawyers nevertheless treated the raid as part of the Mueller investigation. Their description of communications with SDNY, for example, begins this way, followed by several redacted lines.

On April 9, 2018, Mr. Cohen’s legal counsel was advised in a telephone call by an Assistant United States Attorney from the Southern District of New York, that the Office of Special Counsel (Robert Mueller) had “referred a portion of” the subject matter of the warrants to the U.S. Attorney’s Office for the Southern District of New York. Id. ¶ 31. Each page of the attachments to the search warrants contains a footer with the date “2017.08.02” (August 2, 2017)—that happens to be the same date that the Office of Special Counsel’s jurisdiction was amended by the Deputy Attorney General. One obvious and credible explanation is that the attachments listing the subject matter of the warrant used by the U.S. Attorney’s Office were drafted by the Office of Special Counsel as earlier as that date. [three lines redacted]

The government, in addition to mocking Cohen’s assumption based off the footer metadata, reveals what that redaction hides: Cohen speculated, “see Br. at 10, that the SCO drafted the search warrants.”

Nevertheless, both sides treat Cohen’s attempt to treat this as a question of the Russia investigation seriously. The government provides three pieces of evidence to describe why Cohen couldn’t be trusted to turn these materials over pursuant to a subpoena — because the crimes themselves involve fraud and deception, because he had, by Friday, already invoked the Fifth in the Stormy Daniels civil suit suggesting he’d withhold documents here as well, and because a tantalizingly redacted passage that suggests Cohen or someone else has already started destroying evidence…

In addition, however, the government does contest Cohen’s claim that he fully cooperated with any of the three Russia investigation his lawyer addresses at length in his declaration, which (having treated this raid as part of the Mueller investigation rather than pertaining to separate crimes) he uses to argue that Cohen could be trusted to turn over documents willingly. For example, the government notes that Cohen himself has said he didn’t cooperate with the Congressional investigations (and wasn’t treated as a target).

It appears that Cohen was not a target of those investigations. Additionally, while Cohen claims in his motion to have been cooperative, he offers no support for this assertion. Publicly, Cohen suggested the opposite, telling Time Magazine that he declined a voluntary request from Congress because it was “too broad.”

Even better, and critically important to the Trump filing submitted last night, is where SDNY fact checks the Cohen claim, backed by his lawyer’s sworn declaration, that he hadn’t fully cooperated with Mueller’s investigation because Mueller asked for everything.

Cohen also states that the SCO “had requested that the Trump Organization produce all of Mr. Cohen’s communications that were within the Trump Organization’s custody, possession, or control,” and that Cohen objected “on the grounds that [the request] called for production of privileged communications, among other things.” (Br. 8-9). Although in the ordinary course, the USAO-SDNY would not comment on investigative requests or demands made to third parties, particularly those from a separate office undertaking its own, independent investigation, in light of the representations made by Cohen’s counsel, USAO-SDNY contacted the SCO about these representations and understands they are not accurate. In particular, the SCO did not request that the Trump Organization produce “all communications” by Cohen in the Trump Organization’s possession or control irrespective of subject matter or privilege. Indeed, the request made by the SCO was considerably narrower, and specifically omitted, among other things, any documents that were protected by privilege or of a purely personal nature. Cohen nonetheless objected to that request for documents and, after discussions between Cohen’s counsel and the SCO, the SCO decided not to seek production at that time. That Cohen sought to preclude the Trump Organization from producing these third party communications belies both (i) his general assertion of cooperation, and (ii) his stated principal interest in protecting attorney-client communications. Indeed, a careful review of Cohen’s motion papers reveals that he does not purport to have personally produced any documents to the SCO.

The intransigence pertaining to Cohen’s documents involving the Trump Organization continued over to last week’s response. While the Trump Organization (which I suspect is really who hired Hendon) did not request to be party to this fight, they did send SDNY a letter last week demanding that it return every document involving Cohen and the Trump Organization.

USAO-SDNY has already received correspondence from counsel for the Trump Organization (Cohen’s former employer), which referenced the searches conducted of Cohen’s premises and claimed:

We consider each and every communication by, between or amongst Mr. Cohen and the Trump Organization and each of its officers, directors and employees, to be subject to and protected by the attorney-client privilege and/or the work-product privilege.

As a reminder: in March, Mueller subpoenaed the Trump Organization for documents, including but not limited to Russia. That’s one reason, I suspect, that Cohen believes this raid is partly about supporting Mueller’s investigation (I wonder whether Trump Org is the entity that has started destroyed documents?). And that’s one reason, I suspect, that Cohen’s team made a bid to review the seized documents for responsiveness (they use the word 13 times in their filing) before SDNY’s taint team gets the documents.

That is, in addition to whatever other crimes Cohen has facilitated for the Trump Organization, he wants to make sure that the government can’t use materials seized in this raid to investigate other crimes, such as those Cohen might be suspected of in relation to the Mueller investigation.

Having failed to cooperate with both the congressional and Mueller investigations, which is one reason SDNY cites for having used a warrant rather than a subpoena, Cohen now wants to reset the clock so he can treat this raid as a subpoena rather than a warrant so he gets to decide what is responsive to the crimes he is being investigated for or even to the demands of the Russia investigation.

Frankly, to the extent that Mueller might use Cohen’s own crimes as an excuse to search his documents (which the FBI seems to have sorted, even to the level of describe specific checks on the search warrant returns) and his devices (which they seized) to find materials relating to the Russian investigation, I’m sympathetic to Cohen’s case. Sure, Mueller can and may already be working on obtaining warrants to search for materials he might use now that the devices are in the government’s possession. But given how advanced the Mueller investigation is, it seems the government should be expected to obtain separate probable cause warrants rather than rely on plain view doctrine to search for materials on Cohen’s devices relating to Russia.

All of which brings us to the letter Hendon submitted last night on behalf of Trump personally. Herndon actually goes several steps further than Cohen’s team did (while he asked to do the first review, he made a concerted case to appoint a Special Master to do it), asking that Cohen get copies of the seized materials, after which Cohen will decide what pertains to Trump, which Trump will then get to review to decide whether he will assert privilege, only after which SDNY will be permitted to object.

1. Enjoining the government from using a taint team to conduct an initial privilege review;

2. Directing the government to provide Mr. Cohen and his counsel with a copy of the materials seized from Mr. Cohen by the government on April 9, 2018;

3. Directing Mr. Cohen and his counsel, after the government provides Mr. Cohen and his counsel with a copy of the seized materials, to identify to the President all seized materials that relate to him in any way and to provide a copy of those materials to him and his counsel;

4. Directing the President and his counsel, after they review the materials provided by Mr. Cohen, to identify for the government’s taint team all materials over which the President asserts privilege;

5. Authorizing the government’s taint team to raise any objections to the President’s assertions of privilege with the Court; and

6. Prohibiting the government’s taint team from providing the Investigation Team with (a) any materials over which the President asserts a privilege without objection from the taint team, and (b) any materials that the Court rules are privileged over the taint team’s objection.

This effectively flips the process on its head, turning the seizure back into a subpoena situation. And while Herndon doesn’t make this as obvious as Cohen’s team did, they intend the Cohen and Trump reviews to include a review of responsiveness as well as privilege.

The level of protection provided to the privilege-holder in the familiar context of a grand jury subpoena duces tecum should be accorded to the President here. When a grand jury subpoena for documents is served, the recipient, with the advice of his counsel, reviews the documents in his possession and produces the responsive documents, with one critical exception: with notice to the government, the recipient withholds all responsive documents that he and his counsel conclude are subject to a privilege, identifying such documents in some fashion without disclosing the privileged contents, often by means of a privilege log. [my emphasis]

Curiously, Herndon doesn’t contest that the government has good reason to believe materials have gotten destroyed, but says that now that the government has obtained the documents, any risk of destruction is gone. Here’s the entirety of the section where Herndon addresses the government’s need to seize these documents.

Of course, here, the government chose not to serve a grand jury subpoena, but instead to execute search warrants on an attorney’s office, residences, and effects. The government asserts that this truly extraordinary measure was necessary to prevent the destruction of evidence. (Gov’t Opp. at 14.) But even if that is true, the exigency has dissipated entirely, as the seized materials are now in the government’s control, beyond any of the potential misuses of the materials that motivated the seizure in the first place. Therefore, the fact that the government seized privileged documents rather than subpoenaing them is now irrelevant – except for the profoundly important privilege issues that the government’s unilateral and peremptory action has raised.

The government insists that it is “entitled” to the seized materials. (Id. at 2, 19.) However, to the extent the government seized privileged information, it is not entitled to have that information, much less review it. See, e.g., von Bulow, 828 F.2d at 99 (recognizing the “urgent” “need for timely protection [from disclosure] … where the discovery sought is … blanketed by the absolute attorney-client privilege”). It simply cannot be the case that by acting in such an aggressive, intrusive, and unorthodox manner, the government has somehow created an entitlement on its own part to eliminate the President’s right to a full assertion of every privilege argument available to him. Indeed, if the Court were to endorse the use of a taint team under these circumstances, raids of law offices would likely become more commonplace, as they would permit the government to wrest from the privilege-holder the ability, in the first instance, to assert privilege over documents and rightfully withhold them.

The government has done what it has done, and it has thereby protected against every notional evil it could have articulated in favor of its action. It no longer has any cognizable interest in proceeding by any procedure other than that which is typically employed to ensure that the attorney-client privilege is fully protected.

Note what has fallen out of the discussion of exigency? The crime-fraud exception, which SDNY had made clear it expected to find ample evidence of.

Elsewhere, Herndon does mention SDNY’s expectations of finding materials that fall under the crime-fraud exception, but she suggests that a taint team cannot be trusted to access the documents first because it might provide the investigative team documents that are clearly not privileged, a non sequitur to the point of crime-fraud exception documents.

The government has assured the Court that “under no circumstances will a potentially privileged document or a document potentially subject to the crime-fraud exception be provided to or described to the Investigative Team without the consent of the privilege-holder or his/her counsel, or the court’s approval.” (Gov’t Opp. at 6.) Presumably the government intends by those words to comfort the Court, but the government simply cannot make that guarantee. See, e.g., Lek, 2018 WL 417596, at *1-3. As discussed above, under the government’s proposal, the taint team will turn over to the Investigative Team all materials that the taint team itself deems not privileged. If such materials contain any privileged information that the taint team failed to identify, the President’s privilege will be irremediably violated. The President, the public, and the government have a vital interest in ensuring the integrity of the privilege review process, and the taint team procedure is plainly inadequate to the task. [my emphasis]

Remarkably, Herndon suggests that the public (!!!) has an interest in letting criminal suspect Michael Cohen, who has already proven uncooperative with valid investigations, sort through his materials to decide whether the government should have documents that prove he abused his position as a lawyer to commit fraud on behalf of a client.

As the government has said, it’s not clear Cohen has any clients besides Donald Trump.

Which is why I suspect SDNY is going to provide details in court today of the crimes that it has probable cause to believe were committed. Because, in the face of an otherwise compelling claim that this is an exceptional case, what SDNY is investigating is still that Cohen served not to provide legal advice to Donald Trump, but to provide legal cover for fraud.

I have no idea what Kimba Wood will do in response (and I suspect SDNY will challenge the legal precedents Herndon has invoked).

But I suspect we’re going to hear a lot more about how SDNY has reason to believe that Michael Cohen hasn’t been serving as a lawyer for Trump, he has been serving as a fixer for him.

And Stormy Daniels will be looking on as evidence of that fact.

Update: In their filing laying out the scope of what Michael Cohen considers privileged this morning, his lawyers make their concerns about plain view doctrine even more explicit.

The choice here is between allowing the Government to make an end run around the Fourth Amendment by scooping up and viewing all of the communications seized in the search of a lawyer’s office (in this case, all of the documents and data of the President’s personal attorney) regardless of whether the documents seized were the subject of the judge’s original probable cause determination, or appointing a neutral third party to conduct that review. If the government can obtain a search warrant for particular items but then seize and review everything in an attorney’s office, the protections of the Fourth Amendment are meaningless.

[snip]

In addition, a Special Master should be appointed in the interest of the administration of justice to ensure that the Government does not have access to materials for which they have not yet shown would be obtained through a valid search warrant through a showing of probable cause. In obtaining the search warrant, the Government had to make a showing of probable cause that Mr. Cohen is in possession of evidence of a crime. The search warrant is designed to allow the Government to obtain that material – and that material only.

And they again invite SDNY to lay out evidence that this stuff isn’t covered under the crime-fraud exception.

Moreover, without proffering any evidence of its applicability, the government referred to the “crime-fraud” exception in its opposition brief, (Gov’t Opp. Br. at 6, 10), and during oral argument. 4/13/18 Tr. at 28. The government also referred to its search warrant application – which we have never seen – as including “evidence for the crimes that were set forth in [a] detailed affidavit.” 4/13/18 Tr. at 60. Since there is, according to the government, an “ongoing grand jury investigation” (which is required to remain secret), it would most certainly be embarrassing and “detrimental” to Mr. Cohen’s clients if he were to reveal their identities publicly.

SDNY Doesn’t Think Michael Cohen Is Much of a Lawyer

In this post, I noted that a bunch of what got seized in a raid of Michael Cohen’s home and office on Monday wouldn’t be privileged.

But boy oh boy was I being nice compared to the way the prosecutors from Southern District of New York dismissed the notion that Cohen was much of a lawyer in this filing opposing Cohen (and Trump’s) efforts to prevent FBI from going through Cohen’s seized documents.

Housekeeping

Before I get into that, a few clarifications on questions we’ve had. First, the filing makes it clear that the referral from Mueller’s office came months ago. SDNY has their own taint team.

The FBI agents who seized materials pursuant to the search warrants were filter agents who are not part of the investigative team and have been walled off from those AUSAs or FBI personnel assigned to the investigation (the “Investigative Team”).

The venue in SDNY is primary. Indeed, they mock Cohen’s representation that Mueller’s team wrote this warrant application by pointing out his misunderstood the metadata of it.

Although Cohen accurately states that the Special Counsel’s Office (“SCO”) referred this investigation to the USAO-SDNY, the investigation has proceeded independent from the SCO’s investigation. Cohen’s speculation, see Br. at 10, that the SCO drafted the search warrants is unfounded. The date in the bottom corner of the attachments is the date that the USAO-SDNY’s standard form search warrant rider was most recently updated for use by the office.

Given that Mueller handed off this part of the investigation entirely, then, it’s highly unlikely Mueller thinks there’s evidence of coordination between Wikileaks and the Access Hollywood video, as I laid out here (which is not to say Mueller isn’t happy that SDNY has raided Cohen).

In addition, the filing makes it clear that Geoffrey Berman has recused, with Robert Khuzami acting as US Attorney for this investigation.

The filing also reveals the scope of the search: “Michael Cohen’s residence, hotel room, office, safety deposit box, and electronic devices,” even while noting that they limited their search to certain categories of documents.

Not much of a lawyer

The lawyers from the famously self-important SDNY spend much of their brief not just demonstrating that Cohen was not serving as an attorney in the seized materials, but that he’s not much of a lawyer in any case.

The repeatedly note he has few if any clients besides Trump.

Based on information gathered in the investigation to date, the USAO-SDNY and FBI have reason to believe that Cohen has exceedingly few clients and a low volume of potentially privileged communications.

In a long passage arguing — as I did — that much of what was seized would not be protected by privilege, they sniff about how Cohen differs from a “traditional law office,” mocking the idea that he “holds himself out as a practicing attorney.”

Although Cohen is an attorney, he also has several other business interests and sources of income. The searches are the result of a months-long investigation into Cohen, and seek evidence of crimes, many of which have nothing to do with his work as an attorney, but rather relate to Cohen’s own business dealings. As set forth below, unlike a search of a traditional law office, the information gathered thus far in the investigation suggests that the overwhelming majority of evidence seized during the searches will not be privileged material, but rather will relate to Cohen’s business dealings.

Nevertheless, because Cohen holds himself out as a practicing attorney, each of the search warrants contains the following provision: Additionally, review of the items described in this Attachment shall be conducted pursuant to established procedures designed to collect evidence in a manner reasonably designed to protect any attorney-client or other applicable privilege.

When appropriate, the procedures shall include use of a designated “filter team,” separate and apart from the investigative team, in order to address potential privileges.

In one redaction, they suggest something about Cohen’s recent behavior suggests he couldn’t be practicing much law.

Cohen’s discussion in his own memo of the Strategic Partnership between him and Patton Boggs is entirely redacted (it may be included in the significant redaction on page 3), but in the government’s memo much of it remains unredacted. Which means this redaction might state, in more damning terms, what is described elsewhere — that they cut him off on March 2, in part because he had brought in only 5 clients for the $500,000 a year he got paid.

SDNY goes on at more length about how weak Cohen’s claim that his marketing relationship with Patton Boggs creates a great risk of privilege in the materials that got seized.

Second, Cohen’s claim to have privileged communicatons through a law firm that he describes as “Law Firm-1” omits facts about his relationship with Law Firm-1 that render it unlikely that a significant volume of attorney-client privileged material – if any – was seized in connection with Cohen’s relationship with that law firm. Specifically, on or about March 1, 2017, Cohen—through his wholly-owned entity, Michael D. Cohen & Associates P.C.—entered into a “Strategic Alliance Agreement” with the law firm (the “Agreement”).6 Among other things, the Agreement provided that Cohen would receive a $500,000 annual “strategic alliance fee” from the law firm. Under certain circumstances, Cohen would also receive a percentage of the fees charged by the law firm for clients introduced to the law firm by Cohen. The Agreement also spelled out other aspects of the relationship between Cohen and the law firm, including: (1) Cohen would be given an office at the law firm; (2) Cohen would maintain his own computer server system not connected to the law firm’s computer server system; and (3) the law firm would not have a key to Cohen’s office. In addition, based upon conversations with a representative of the law firm, the USAO-SDNY understands as follows, in substance and in part: (1) Cohen did not have an email address associated with the firm; (2) Cohen did not have access to the firm’s shared drives or document systems—and vice versa; (3) Cohen’s documents were to be kept in a locked filing cabinet; and (4) Cohen did not have access to any of the firm’s client files.

What is left (and what I’ll deal with in a follow-up) is the way Cohen wields his relationship with the President to try to shield his files.

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.

Bannon Aims to Best Jared Kushner’s Biggest Mistake in Modern Political History

Back in September, Steve Bannon agreed on 60 Minutes that firing Jim Comey was the stupidest decision in modern political history.

In a “60 Minutes” interview that was posted online Sunday night, Bannon was asked whether he considered Comey’s dismissal — which ignited a political firestorm and directly led to the appointment of a special counsel to investigate Russian meddling in the 2016 election, including potential ties to Trump’s campaign — the biggest mistake in political history.

Bannon responded, “That would be probably — that probably would be too bombastic even for me, but maybe modern political history.

“He went on to acknowledge that if Comey had not been let go, it’s unlikely that the probe led by special counsel Robert Mueller would have been established.

“I don’t think there’s any doubt that if James Comey had not been fired, we would not have a special counsel, yes,” he said. “We would not have the Mueller investigation. We would not have the Mueller investigation and the breadth that clearly Mr. Mueller is going for.”

At that time, Bannon insisted that he faced no risk from even the expanded Mueller investigation, and hadn’t even lawyered up.

All that changed, of course, after he ran his mouth to Michael Wolff. Bannon claimed to be offended by the June 9, 2016 Trump Tower meeting. In his apology he would even say the entire meeting offended his life’s work making movies about fighting “the evil empire.”

“My comments about the meeting with Russian nationals came from my life experiences as a Naval officer stationed aboard a destroyer whose main mission was to hunt Soviet submarines to my time at the Pentagon during the Reagan years when our focus was the defeat of ‘the evil empire’ and to making films about Reagan’s war against the Soviets and Hillary Clinton’s involvement in selling uranium to them.”

But what really irked Bannon is that when Don Jr, Paul Manafort, and Jared Kushner met with Russians in an effort to obtain dirt on Hillary Clinton, they didn’t use lawyers as cutouts.

“The chance that Don Jr. did not walk these jumos up to his father’s office on the twenty-sixth floor is zero,” said an astonished and derisive Bannon, not long after the meeting was revealed.

“The three senior guys in the campaign,” an incredulous Bannon went on, “thought it was a good idea to meet with a foreign government inside Trump Tower in the conference room on the twenty-fifth floor—with no lawyers. They didn’t have any lawyers. Even if you thought that this was not treasonous, or unpatriotic, or bad shit, and I happen to think it’s all of that, you should have called the FBI immediately. Even if you didn’t think to do that, and you’re totally amoral, and you wanted that information, you do it in a Holiday Inn in Manchester, New Hampshire, with your lawyers who meet with these people and go through everything and then they verbally come and tell another lawyer in a cut-out, and if you’ve got something, then you figure out how to dump it down to Breitbart or something like that, or maybe some other more legitimate publication. You never see it, you never know it, because you don’t need to. . . . But that’s the brain trust that they had.”

On Monday, the home, hotel, and office of the lawyer Trump has long used as such a cutout, Michael Cohen, got raided. Among the things the FBI sought — in addition to information on Cohen’s own corrupt business — were communications Trump and that lawyer and others had about the 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. [my emphasis]

Bannon — and Marc Kasowitz, who sent a lawyer to meet with Trump in the wake of news of the raid — was probably among those associates. After all, Bannon also told Wolff that he and Kasowitz had to deal with a number of “near-death problems on the campaign” pertaining to women — like Stormy Daniels and Karen McDougal — making legal threats against Trump.

Unable to hire prestige talent, Bannon turned to one of the president’s longtime hit-man lawyers, Marc Kasowitz. Bannon had previously bonded with Kasowitz when the attorney had handled a series of near-death problems on the campaign, including dealing with a vast number of allegations and legal threats from an ever growing list of women accusing Trump of molesting and harassing them.

Now, Steve Bannon, the guy who claimed firing Jim Comey was the stupidest recent political decision, the guy who wasn’t so much opposed to political rat-fucking as he was opposed to doing it without using lawyers as a cutout, is shopping a new plan to get Trump out of his legal woes: fire Rod Rosenstein.

Stephen K. Bannon, who was ousted as White House chief strategist last summer but has remained in touch with some members of President Trump’s circle, is pitching a plan to West Wing aides and congressional allies to cripple the federal probe into Russian interference in the 2016 election, according to four people familiar with the discussions.

The first step, these people say, would be for Trump to fire Deputy Attorney General Rod J. Rosenstein, who oversees the work of special counsel Robert S. Mueller III and in recent days signed off on a search warrant of Trump’s longtime personal lawyer, Michael Cohen.

Bannon also wants to fire Ty Cobb, one of Trump’s remaining semi-legit lawyers, as part of an effort to invalidate all the testimony from White House officials — including himself!!!! — based on the claim it should have been covered by executive privilege.

And he is telling associates inside and outside the administration that the president should create a new legal battleground to protect himself from the investigation by asserting executive privilege — and arguing that Mueller’s interviews with White House officials over the past year should now be null and void.

“The president wasn’t fully briefed by his lawyers on the implications” of not invoking executive privilege, Bannon told The Washington Post in an interview Wednesday. “It was a strategic mistake to turn over everything without due process, and executive privilege should be exerted immediately and retroactively.”

[snip]

Bannon believes Trump can argue he was given poor counsel by his lawyers on Russia, including Ty Cobb, who has encouraged a cooperative approach to Mueller’s team.

“Ty Cobb should be fired immediately,” Bannon said.

I’m agnostic about whether the Access Hollywood video actually relates to the Russian investigation. If it does, the only conceivable reason to refer it to Southern District of NY would be to establish a clean team — but Mueller’s team has already handled interactions with investigations involving two lawyers and/or legal teams, Melissa Laurenza (who testified that Manafort led her to lie on FARA forms), and Skadden Arps. I do think it possible — highly likely, actually — that Cohen may have been used as a cutout in some hotel room in New England to cover-up other sensitive issues.

But given Bannon’s response, the investigation into Cohen’s cover-up of Trump’s problems with women — including both the Access Hollywood tape and the legal negotiations with Daniels and McDougal — probably implicates Bannon as well as Cohen.

And so Bannon wants to do what Kushner did when he, similarly, realized how much a legal investigation jeopardized him personally: fire the guy running the investigation.

Indeed, Bannon seems so panicked he can’t even remember that such moves rank among the stupidest in modern political history.

Update: One more thing about the Stormy/McDougal/Access investigation. That may come directly out of Bannon’s own testimony, which would explain why he’d want to try to invalidate it.