The matter now under investigation by the FBI and federal prosecutors in the Southern District of New York (SDNY), however, is a very live criminal investigation. Anyone potentially connected to it should be worried.
Much of the commentary about the SDNY investigation puts the cart before the horse. When Cohen’s law office, hotel residence, and home were searched pursuant to court-approved warrants this week, there were howls about a purportedly unconscionable violation of the attorney–client privilege. As I pointed out in the aftermath, however, whether this was an egregious constitutional affront or textbook investigative rigor depends on (a) exactly what was under investigation and (b) whether the materials sought from Cohen were, in fact, privileged attorney–client communications.
We did not know that at the time, and we are still not fully informed. Still, as an alum who spent nearly 20 years as an SDNY prosecutor, I’m always inclined to assume my old office is up to serious business. I also know well the ostentatiously careful steps the SDNY typically takes to avoid unconstitutional interference in the right to counsel — meaning to distinguish real legal assistance from schemes masquerading as attorney–client relationships.
In the earlier column, I observed that it would be outrageous to raid a lawyer’s premises if the only “crime” under investigation were a campaign-finance infraction — which is generally treated as a civil-law issue for the Federal Election Commission to sort out. I would feel the same way if it were essentially a campaign-law no-no inflated into an alleged bank fraud by some, shall we say, prosecutorial creativity (a euphemism for stretching the penal law to capture erstwhile innocent behavior).
That, however, is not what’s going on here — or, at least, I don’t think it is all that is going on here.
I believe that the government is investigating whether there was, in connection with Trump’s White House bid, a conspiracy to commit fraud and extortion for the purpose of silencing potentially compromising sources — specifically, people in a position to portray Donald Trump as a womanizer. Clearly, the prosecutors regard Trump and Cohen as potential co-conspirators. That does not mean a conspiracy will be proven, but the possibility is certainly being scrutinized. Here, it is important to bear in mind a distinction from the Russia investigation: This is not a counterintelligence matter; the SDNY is unquestionably conducting a criminal investigation, and a federal judge would not have authorized search warrants absent finding probable cause that federal crimes may have been committed.
https://www.nationalreview.com/2018/04/michael-cohen-investigation-serious-peril-for-trump/
Much of the commentary about the SDNY investigation puts the cart before the horse. When Cohen’s law office, hotel residence, and home were searched pursuant to court-approved warrants this week, there were howls about a purportedly unconscionable violation of the attorney–client privilege. As I pointed out in the aftermath, however, whether this was an egregious constitutional affront or textbook investigative rigor depends on (a) exactly what was under investigation and (b) whether the materials sought from Cohen were, in fact, privileged attorney–client communications.
We did not know that at the time, and we are still not fully informed. Still, as an alum who spent nearly 20 years as an SDNY prosecutor, I’m always inclined to assume my old office is up to serious business. I also know well the ostentatiously careful steps the SDNY typically takes to avoid unconstitutional interference in the right to counsel — meaning to distinguish real legal assistance from schemes masquerading as attorney–client relationships.
In the earlier column, I observed that it would be outrageous to raid a lawyer’s premises if the only “crime” under investigation were a campaign-finance infraction — which is generally treated as a civil-law issue for the Federal Election Commission to sort out. I would feel the same way if it were essentially a campaign-law no-no inflated into an alleged bank fraud by some, shall we say, prosecutorial creativity (a euphemism for stretching the penal law to capture erstwhile innocent behavior).
That, however, is not what’s going on here — or, at least, I don’t think it is all that is going on here.
I believe that the government is investigating whether there was, in connection with Trump’s White House bid, a conspiracy to commit fraud and extortion for the purpose of silencing potentially compromising sources — specifically, people in a position to portray Donald Trump as a womanizer. Clearly, the prosecutors regard Trump and Cohen as potential co-conspirators. That does not mean a conspiracy will be proven, but the possibility is certainly being scrutinized. Here, it is important to bear in mind a distinction from the Russia investigation: This is not a counterintelligence matter; the SDNY is unquestionably conducting a criminal investigation, and a federal judge would not have authorized search warrants absent finding probable cause that federal crimes may have been committed.
https://www.nationalreview.com/2018/04/michael-cohen-investigation-serious-peril-for-trump/