“Trump’s Moment of Truth”: Will Mueller Flip Cohen?

The dramatic F.B.I. raid executed Monday against Michael Cohen, the president’s personal attorney, marks a turning point in the Justice Department’s investigations into Donald Trump and his associates. As Trump noted Tuesday morning, in his own madcap way, attorney-client privilege is a cornerstone of the U.S. legal system. For federal agents to have searched Cohen’s apartment, office, and hotel room, prosecutors must have convinced a judge that a raid was necessary to obtain evidence of a crime that Cohen might have attempted to hide or destroy if he was issued a subpoena. The implications, for Cohen and for Trump, are potentially explosive. “I suppose you could say that it is Trump’s moment of truth,” Bob Bauer, the former Obama White House general counsel, told me. “It is the red line he always seemed to draw in his bitter complaints about the Mueller investigation—now here we are. Cohen would not be a subject or target that Trump would wish to have flipped against him.”

The Justice Department’s interest in Cohen appears to be connected to his efforts to silence two women, in the run-up to the 2016 election, who claimed to have had affairs with Trump. As The New York Times first reported, and several other publications quickly confirmed, federal agents were seeking records related to former Playboy model Karen McDougal—who was paid $150,000 by Trump ally David Pecker’s American Media Inc., which owns The National Enquirer, burying her story—and Stormy Daniels, who Cohen paid $130,000 to sign a non-disclosure agreement. Any payment facilitated on behalf of the Trump campaign could be considered a violation of campaign finance laws, which then set the individual contribution limit at $2,700. (Stephen Ryan, an attorney for Cohen, characterized the raid as “completely inappropriate and unnecessary,” and said it had “resulted in the unnecessary seizure of protected attorney-client communications between a lawyer and his clients.”)

Legal experts agree this is a major development. “It’s an enormously aggressive move for any prosecutor to make, particularly given Cohen’s client,” said Sol Wisenberg, a deputy special prosecutor during the Starr investigation. Neal Katyal, who served as acting solicitor general under Obama, described it as “very bad news” for Cohen. “D.O.J. only raids once they have concluded that lesser options—like cooperation—aren’t working and that there is a risk that evidence may be destroyed,” he said. The barrier to convincing a judge to approve a search warrant would be even higher in a case involving a sitting president. More significant, a judge would require evidence of potential illegal behavior between Trump and Cohen before approving the seizure of any communications involving both of them. “If the warrant specifically authorized the seizure of attorney-client communications, the government would have had to convince a federal magistrate that the crime-fraud exception was in play,” Wisenberg added.

Andrew Hall, who represented former Nixon adviser John Ehrlichman during the Watergate scandal, offered a succinct summary of the distinction: “If a client goes to a lawyer and confesses, ‘I committed a crime, I stole money, I shot somebody, I killed somebody’—whatever the crime is, it doesn’t matter. That confession is within the attorney-client privilege. It cannot be discovered,” he said. “However, if the client is attempting to use the lawyer, or the lawyer is volunteering to be a part of an ongoing crime, there is no attorney-client privilege.”

Even then, prosecutors have to be extraordinarily careful about what communications remain privileged. “Going in and seizing a lawyer’s computer [poses] a lot of danger to the government because there is, built into that process, the invasion of the attorney-client privilege,” Hall continued. Renato Mariotti, a former federal prosecutor in Illinois, elucidated the difficulty of differentiating between the two. “When you obtain a search warrant, you list in the search warrant the items to be seized,” he explained. “You offer reasons or evidence to support why each one of those things will be found in the location, and why those things are relevant to an ongoing investigation,” which means investigators would have had to outline why communications between Trump and Cohen were pertinent to the investigation and possibly did not fall under attorney-client privilege. Next, a “taint team” will have to determine what communications between the president and his attorney might fall into this category. “If they are discussing how to commit a crime, that is also not privileged,” he said. “If I was Trump, that would be my biggest concern.”

Trump’s explosive response to news of the raid may help to explain why it was carried out by the U.S. Attorney’s Office for the Southern District of New York, rather than by Mueller’s team. As Bloomberg reported Monday, the impetus for the warrant was circuitous: Mueller brought information he had uncovered about Cohen to Deputy Attorney General Rod Rosenstein, who was put in charge of the Trump-Russia probe following Attorney General Jeff Sessions’s recusal last year, and then Rosenstein made a referral to the S.D.N.Y. As a result, the raid was not technically part of Mueller’s Russia investigation—a distinction that may have as much to do with politics as with jurisprudence.

“The S.D.N.Y. is tooled up to execute such raids, whereas the special counsel’s office sitting in D.C. would face logistical challenges in trying to do it themselves,” Katyal said. More important, outsourcing the raid could mean “there is some aspect to what is in Cohen’s office that is outside of Mueller’s jurisdiction,” he added. If the latter is true, Wisenberg noted, “Then it is no longer part of Mueller’s case.” That logic is unlikely to soothe Trump, who is reportedly itching to fire Sessions, Rosenstein, and Mueller. Still, it provides the special counsel with at least one degree of separation from the initial raid. “To criticize Mueller misses the mark,” Wisenberg continued. “It was wise of Rosenstein to assign the case to another office to take the heat off of Mueller.”

It also establishes a protective barrier between Mueller and one of the seedier Trump scandals. “It is wise that Mueller and Rosenstein avoided the fatal mistake of Ken Starr when he decided to expand his jurisdiction to the Monica Lewinsky matter, a tawdry subject, but not highly serious to the welfare and security of the American people,” William Jeffress, a white-collar defense attorney who worked on the Valerie Plame leak case, told me. “There are several possible crimes that might have been committed by the circumstances of the hush money, but these are appropriately investigated by a U.S. attorney, not by special counsel appointed to investigate Russian interference in the election.”

Mueller, of course, has an ace up his sleeve, since anything the Southern District team uncovers that relates to Russia would be referred back to the special counsel’s office anyway. In short, Mueller is outsourcing the work, protecting himself from some of the fallout, and will likely receive the same results as he would have searching through Cohen’s documents himself.

Will Cohen flip? “You just need to break one weak link to do it,” Hall said. But don’t expect new indictments too soon. “I think that things are going to sound like they are slowing down for a little bit because all of this information has to be pulled, digested, analyzed, inputted into a bigger picture,” he cautioned. “Nixon didn’t resign because of the Ellsberg Papers, but that led to the Watergate break-in, that led to the cover-up, and Nixon’s resignation was tied directly to the cover-up . . . So, to me, as things heat up, the next big thing will be a shift from things like ‘What was the Russian involvement in the campaign?’ to ‘Has the cover-up begun and where is it?’”