On April 9, 2018, news broke that the FBI had raided the office of President Trump’s attorney, Michael Cohen.
Apparently the search was the result of referral from Special Counsel Mueller’s team to the SDNY U.S. Attorney’s Office.
When I saw the news, my first thought was “wow, the prosecutor had to jump through a lot of hoops to get approval of that warrant.”
There are a lot of procedural hurdles that must be overcome to obtain approval to search any lawyer’s office, never mind the political minefield involved in raiding the office of the sitting President’s lawyer.
It’s worth noting that the FBI does not normally raid the offices of lawyers. The files and emails held by a lawyer are mostly protected by the attorney-client privilege and seizing them creates all sorts of issues for the FBI.
There are two DOJ relevant policies here–one governs if Mr. Cohen IS the subject of the investigation and one governs if Mr. Cohen is NOT the subject of the investigation.
Let’s take a quick look at each of them.
If Mr. Cohen Is a Subject of the Investigation
The U.S. Attorney’s Manual has a section (9-13.420) about “Searches of Premises of Subject Attorneys.”
Here are the basics:
First, this particular policy applies only to “subjects” of investigations, which is defined as someone who is a
“suspect, subject or target,” or an attorney who is related by blood or marriage to a suspect, or who is believed to be in possession of contraband or the fruits or instrumentalities of a crime.
Second, § 9-13.420 says that “prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law.”
It advises that prosecutors should consider using subpoenas rather than a warrant
unless such efforts could compromise the criminal investigation or prosecution, or could result in the obstruction or destruction of evidence, or would otherwise be ineffective.
Third, the AAG for the Criminal Division (right now Acting AAG John Cronan) or the U.S. Attorney (SDNY U.S. Attorney Geoffrey Berman) must give prior approval of the warrant. So, this is not just an SDNY line attorney acting alone. Most likely, it was Mr. Berman who approved it since he oversees the office that sought the warrant.
Fourth, the prosecutor must document the process that will be used to protect the privilege, likely through a “taint team” or “privilege team” (see my taint team article and this post, if you want to know more about what that is).
The USAM contains very specific guidelines about what must be described in the proposed “taint team” review procedure:
Who will conduct the review, i.e., a privilege team, a judicial officer, or a special master.
Whether all documents will be submitted to a judicial officer or special master or only those which a privilege team has determined to be arguably privileged or arguably subject to an exception to the privilege.
Whether copies of all seized materials will be provided to the subject attorney (or a legal representative) in order that: a) disruption of the law firm’s operation is minimized; and b) the subject is afforded an opportunity to participate in the process of submitting disputed documents to the court by raising specific claims of privilege. To the extent possible, providing copies of seized records is encouraged, where such disclosure will not impede or obstruct the investigation.
Whether appropriate arrangements have been made for storage and handling of electronic evidence and procedures developed for searching computer data (i.e., procedures which recognize the universal nature of computer seizure and are designed to avoid review of materials implicating the privilege of innocent clients).
All in all, the procedures for obtaining a search warrant to search Mr. Cohen’s office are set forth in much more detail than in most types of searches. SDNY did not decide on a whim to obtain this warrant and execute it.
Most interesting, the prosecutor would also have had to justify to the magistrate judge why a subpoena would not work. That’s usually done by explaining that documents could be destroyed without the element of surprise inherent in a search warrant.
That’s a heady accusation against the lawyer for the sitting President. I’m guessing the reasons were very well supported by evidence. (I have no inside baseball on the reasons given by the prosecutors; I’m just speculating here based on experience.)
If Mr. Cohen Is Not a Subject of the Investigation
There is also a section of the USAM that covers the way prosecutors can obtain a warrant for a lawyer’s office even if Mr. Cohen is not a subject of the investigation. That is in USAM § 9-19.221.
That section provides:
Where the materials sought are in the possession of a disinterested third party physician, lawyer, or clergyman, application for a warrant must be approved by the appropriate Deputy Assistant Attorney General as described in 9-19.220. The request for authorization from the Deputy Assistant Attorney General should be made in writing and include a copy of the warrant application as well as a brief description of the facts and circumstances that form the basis for the recommendation of the authorization. In addition, the request must include a statement that it is authorized by the United States Attorney or the supervising Department of Justice attorney. If the request for authorization is made orally, or if, in an emergency situation, the application is authorized by the United States Attorney or the supervising Department of Justice attorney, a written record, as described above, must be sent to the Deputy Assistant Attorney General within seven days. 28 C.F.R. § 59.4(b)(3).
The approval process is roughly the same–it had to be approved by someone other than the SDNY prosecutor. This process allows for a slightly lower level of approval, the Deputy Assistant Attorney General (there are several of them in DOJ, since each oversees a particular subject area or areas).
This is an extremely interesting development. It will no doubt take some time to have the documents reviewed by the taint team, but I’m guessing the prosecutors are looking for something very specific here. DOJ officials and a magistrate would not have approved this search warrant if it was a fishing expedition.
Stormy Daniels may just turn out to be more than just fodder for late night television and SNL.