Getting Closer To Trump By The Day

[ Posted Tuesday, April 10th, 2018 – 16:23 UTC ]

Federal agents just searched the homes and offices of the personal lawyer of the president of the United States. That is an extraordinary thing to say, but then we live in extraordinary times. The search warrant would not have been granted unless probable cause existed that Michael Cohen had participated in a crime. Furthermore, that subpoenas would not be effective in securing proof of this crime or crimes, therefore a no-knock warrant was necessary (in other words, to prevent Cohen from destroying evidence). But make no mistake about it, the real target of this search was Donald Trump himself. Because the federal investigations (plural) are getting closer and closer to Trump by the day.

Federal prosecutors in general, and Robert Mueller in specific, play their cards pretty close to the vest. They're like icebergs -- you can only see ten percent of what is going on. A full ninety percent remains hidden, beneath the waves. This makes it tough to try to figure out what Mueller is up to, and that is by design. The only breadcrumbs we have are the public documents filed in courts. These may or may not indicate exactly what is going on -- and usually only do so in a tangential way (at least until the very end of the investigation, when all is usually revealed).

Take the indictments handed down so far. Most are being used (or were successfully used) as pressure points. If you are Robert Mueller and you have evidence that Person A has information or knowledge of a crime committed with Person B, but you also have evidence that Person A is guilty of other, lesser crimes, then you indict Person A for the small-fry crimes -- with the implied threat that the heavier charges will follow, unless Person A flips and starts telling you everything they know. So the public hears about the minor crimes, but the larger legal strategy of the prosecutor remains hidden from view. Eventually enough evidence is collected in such a fashion that the major crimes can be proven beyond a shadow of a doubt. Or not, as the case may be.

Mueller, in the case of Trump's lawyer, obviously uncovered something unrelated to his own investigation. He, quite properly, took this to his boss, Rod Rosenstein. Rosenstein referred it to the federal prosecutor in New York, who obtained and executed the search warrant on Cohen. It's worth mentioning that obtaining search warrants on lawyers has to clear an extraordinarily-high bar before a judge will approve them. The probable cause has to be pretty bulletproof, in other words -- even more so considering the client of this particular lawyer is the president. So it's a fair assumption that whatever they showed the judge was pretty damning for Cohen.

Everything gathered in the search will first be vetted by a "taint team" (late-night comedians are already having a field day with that one, which comes as no real surprise considering there's a porn star involved), who will not allow the prosecution team to see anything legitimately covered under attorney-client privilege.

But attorney-client privilege isn't as iron-clad as you (or, more to the point, Donald Trump) might think. There are two big exceptions to it. The first is when a third party is in any way involved in the conversation. Having another person in the room means there is no attorney-client privilege, basically. Then there is the larger exception -- attorney-client privilege does not exist when crimes are being committed or even the possibility of committing them is discussed. So if a client blatantly asks: "How can I break the law and get away with it?" and the attorney answers with salient advice, there is no attorney-client privilege.

It's being speculated that the raid on Cohen was sparked off by Trump saying on Air Force One that he knew nothing about the $130,000 payment Cohen made to Stormy Daniels, and he didn't know where the money came from to make the payment. By admitting this, Trump has opened himself and his lawyer up to further examination, to put it mildly.

What's really extraordinary about this is that Mueller doesn't seem to even be interested in flipping Cohen to testify against Trump. In other words, if Cohen gets indicted in a few months as a result of the raid, Cohen offering to turn state's evidence probably wouldn't help him, since that would be a completely separate investigation being run by a different prosecutor's office. So Cohen might still be in trouble even if he does offer to share evidence with Mueller. In fact, even Trump firing Mueller wouldn't make Cohen's troubles go away, since Mueller isn't even handling this investigation.

One way to measure Mueller's overall progress is by how close he's getting to the principal target, of course. This is standard prosecutorial strategy -- you start at the extreme edges, by flipping the little fish so you can work your way up the chain. You flip some medium-sized fish and eventually you get to the big fish and then eventually the principal of the whole fishy school. Trump's personal lawyer is a giant step closer to the top of this hierarchy. The only ones left personally unexamined by Mueller at this point are Trump's closest advisors, his immediate family, and Trump himself.

Another point worth making is that Trump has always been obsessed with "collusion," but any investigation this wide could end up in all sorts of places. Just as an investigation into a land deal in Arkansas wound up with sex in the Oval Office, an investigation into Russian ties to Trump's campaign has already wound up looking into payoffs made to a porn star and a Playboy Playmate of the Year. Because once a prosecutor starts digging, any evidence they uncover of any unrelated crime has to be referred to other prosecutors to follow up on. Mueller can't just ignore crimes he may come across while looking at other questions, in other words. If they're within the scope of his investigation, he follows up on them. If they are not, he refers them to other prosecutors to deal with.

Trump and Trump's businesses over the years offer up all sorts of avenues for possible criminality. In one of the most extraordinary paragraphs ever penned about a president (or any politician anywhere, really), Paul Waldman of the Washington Post does a fantastic job of itemizing some of these possible avenues. [Editor's note: I normally don't bother preserving links from articles I excerpt, but this time I made the effort, because this really is an extraordinary overview of what is already known about Trump's history. Also, emphasis is from original.]

Making this more problematic, Trump isn’t someone who played close to the line a time or two, or once did a shady deal. He may well be the single most corrupt major business figure in the United States of America. He ran scams like Trump University to con struggling people out of their money. He lent his name to pyramid schemes. He bankrupted casinos and still somehow made millions while others were left holding the bag. He refused to pay vendors. He exploited foreign workers. He used illegal labor. He discriminated against African American renters. He violated Federal Trade Commission rules on stock purchases. He did business with the mob and with Eastern European kleptocrats. His properties became the go-to vehicle for Russian oligarchs and mobsters to launder their money.

Plainly, Trump is a target-rich environment for a federal prosecutor to investigate. And now Trump's personal lawyer's papers and computers and phones are all in the hands of a federal prosecutor. Something tells me more might be uncovered than just a few tawdry payoffs of hush money, since Cohen is routinely characterized as Trump's personal "fixer." If the taint team examines any document or record and determines that there is no attorney-client privilege because crimes were being plotted or discussed, then that evidence is turned over to a prosecutor -- whether to the prosecution team that just executed the warrant, or to a separate prosecutor to look into a brand-new (but unrelated to the warrant) crime that was committed.

Nine-tenths of the iceberg of the Trump investigation is still below the waterline. But unlike with real icebergs, eventually the whole thing will be revealed to the public, at the very end of the process. We haven't reached that end yet, and it's impossible to say when that will happen. But it will happen. And it just got a whole lot closer with the Cohen raid.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


16 Comments on “Getting Closer To Trump By The Day”

  1. [1] 
    Balthasar wrote:

    The clown show is looking more like a carnival every day.

  2. [2] 
    Balthasar wrote:

    Except for the "people will probably die as a result of Trump's incompetence" part. That sucks.

  3. [3] 
    C. R. Stucki wrote:

    Probably Mueller thinks the porn star is an undercover Russian hacker!

  4. [4] 
    Mopshell wrote:

    Just to clarify -

    Reports agree that three places were simultaneously raided by the FBI: Cohen's home, office and hotel room.

    Rosenstein did not refer this investigation to the US Attorney in SDNY. In fact the Trump-appointed Geoffrey Berman is recused from the Michael Cohen investigation and played no role in the raids. So far it is unknown (1) why Berman is recused and (2) who did the recusing: Rosenstein or Berman himself.

    The no-knock search warrant was signed by a Trump-appointed judge and Rosenstein himself signed off on the raids. However, it is not clear at this point who is handling the case. We only know it isn't Berman.

    That the Special Counsel had anything to do with these raids is pure speculation. There has been no statement at all from Mueller's office, much less confirmation. Moreover, Mueller has very wide-ranging powers that allow him to include any crime exposed by his investigation so there's no reason for him to refer any part of that investigation elsewhere.

    In response to the New York Times report, Preet Bharara, the former US attorney for SDNY said, "I need to see more specific reporting before I'm 100% convinced this is a full-on "referral" to SDNY... such a referral seems peculiar." So it is not impossible but nor is it very likely that this is what happened. So tying Mueller to these raids could just be poorly-informed overeagerness on behalf of the media or it could have a malicious basis, ie part of a plot to fire the Special Counsel, something Trump seems eager to do.

    As regards the warrant itself, that required a much higher bar than just probable cause. There is no way that Rosenstein went to a magistrate for a search warrant against the lawyer for the President of the United States without much more than probable cause.

    As Benjamin Wittes from Lawfare said,"You can thus assume there was A LOT of evidence in that warrant application. You can also assume the magistrate in question reviewed it carefully. In other words, you can assume that the evidence more than amply supports the action taken yesterday."

    Preet Bharara also made the point that the DoJ may be providing the taint team before passing evidence onto other prosecutors.They could be from the Special Counsel's office, the SDNY or the NY AG's office. We may not know until Cohen is actually indicted and that could be quite soon since all three of those mentioned have current grand juries empanelled.

  5. [5] 
    Kick wrote:

    So someone help me out here: Why is it the general consensus that Trump is eager to fire Mueller? Regardless of the BS emanating from the White House regarding Trump having the authority to fire Mueller, he does not. Not only that, but this would be a boneheaded move that would genuinely make no sense whatsoever to me.

    At this point, firing Mueller will accomplish what? Shutting down the investigation? Nope... the investigation will go on regardless so to what end would be the motivation for firing Mueller? That type of action on Trump's part would immediately become Exhibit A to an obstruction of justice charge against Trump, and the months and months that Benedict Donald has spent trashing a genuine American hero and the longest serving head of the FBI save J. Edgar Hoover will have been all for naught, in my opinion.

    What am I not seeing? I can think of nothing except political suicide that would be accomplished by such an idiot move on Trump's part, exactly what I believe the firing of James Comey set in motion because just as Comey was ready for Trump, Mueller will be equally if not more so ready and waiting with copious notes, etc. What kind of asshat would commit "Political Suicide 2.0"? It would make no sense whatsoever, and I think we'll sooner see Paul Ryan declare he is not running for reelection and "Trump Warns Russia to Clear Airfield 2.0"... oh, wait.

  6. [6] 
    John M wrote:

    House Speaker Paul Ryan just announced that he will NOT be seeking reelection and that this will be his last term. He will retire come January. Ryan becomes the most recent and biggest Republican so far to announce that he is fleeing the coming Democratic wave in the midterms. What happened to all that "winning" with the huge tax cut that was supposed to be so great? Remember when Paul Ryan tweeted how great it was, what an economic boost it would provide when the school secretary saw her paycheck go up by an extra dollar and fifty cents a week in Pennsylvania!

  7. [7] 
    TheStig wrote:

    Great summary CW! Aren't you glad you decided to stick with the column? I think (hope?) the fun is just beginning.

    "What's really extraordinary about this is that Mueller doesn't seem to even be interested in flipping Cohen to testify against Trump."

    Yep, Cohen is going to take a bullet for Trump...but there are a lot of bullets flying around, and likely as not, more on the way.

    "Mueller can't just ignore crimes he may come across while looking at other questions, in other words. If they're within the scope of his investigation, he follows up on them. If they are not, he refers them to other prosecutors to deal with."

    Like, maybe prosecutors in NY and NJ? Prosecutors who can't be fired by Trump...For non-Federal crimes where Trump has no pardon options.

    "Nine-tenths of the iceberg of the Trump investigation is still below the waterline."

    OK, the iceberg analogy implicitly brings up the Titanic, which according to marine architects would probably would have survived if it had just rammed the berg head on. Swerving just ripped out more compartments and doomed the ship. Same deal with Trumptanic. He should have had his lawyers get better lawyers to discretely work on a plea agreement as soon as he found out he had won the electoral vote. Trump's best move at this late date might well be to skip town (and country) on his next trip abroad. How much bullion can you stash in a golf bag? What secret service to do if the President just decides to run away? Is there anything in the handbook about this?

  8. [8] 
    TheStig wrote:

    Kick-5 "What kind of asshat would commit "Political Suicide 2.0"?"

    Maybe an asshat who sold asshats on-line to red necks?
    If legal push to trial shove, Trump only needs one asshat on the jury.

  9. [9] 
    TheStig wrote:


    Does SDNY refer to Southern District New York or Stormy Daniels-Not Yet?

    Seriously, you do bring up some good questions.

  10. [10] 
    Paula wrote:

    Referencing the Facebook post by CW - this twitterstorm explains the difference between data and metadata and how the latter gets used online to influence people:"

    Interesting and informative. Brief.

  11. [11] 
    Paula wrote:

    So Ryan is scuttling off, no doubt to some rightwing sinecure where he'll reap financial rewards for his tax-heist. At least for awhile. Hope the door hits him in the ass hard on his way out.

    The Cohen raid is interesting on so many levels.

  12. [12] 
    Balthasar wrote:

    ...and another one gone
    another one gone
    another one bites the dust...

  13. [13] 
    TheStig wrote:


    CW called it many's no fun in the house o' Reps if you are in the minority.

    Looks like Ryan is not bullish on Republicans retaining control.

  14. [14] 
    Paula wrote:

    [13] TS: Ryan not bullish - good.

    Per Charles Pierce:

    Instead, he’s going back to Janesville to be the Dad he’s always wanted to be, home to his 5,786-foot Georgian mansion on Courthouse Hill, and its 13 rooms, six bedrooms and seven bathrooms, the little house on the Wisconsin prairie that Ryan was able to afford because he married money, the one that’s on the National Register of Historic Places. Paul Ryan has somehow amassed a fortune of between four and seven million dollars without holding any job except “Congressman” for the past 20 years.

    Nice work if you can get it...

  15. [15] 
    nypoet22 wrote:


    donald makes decisions based on what he feels at the moment, which has about zero correlation (neither positively nor negatively related) with what move would be most astute. we know based on his statements that he likes how it feels to fire people. therefore it's an option, regardless of any likely consequences. since mueller has been threatened with firing pretty much since he took the job of special counsel, it's highly likely he does have a plan in place to account for such a contingency.


  16. [16] 
    nypoet22 wrote:


    i'm curious what sampling and questioning procedures allow rasmussen to consistently outlie the RCP rolling average. one might think that news of indictments and warranted searches so close to the president might negatively impact his numbers, but they've been pretty consistently headed north, especially that one outlier. remember, impeachment is not legal, it's political, so these numbers matter.


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