What’s so disturbing is not just the raid on the office (and home, and hotel room) of Michael Cohen, Trump’s lawyer, but the broader context in which it took place.
What I mean by “broader context,” is the vendetta nature of our entire political discourse for quite some time now; I hesitate to say when it started, but certainly by the time of the Clinton impeachment it was in place at least somewhat, and probably even before that. You may indeed disagree with me on the Clinton impeachment, but I have never seen any reason to change my judgment of that action (which I don’t want to rehash now, but please see this, this, and this, for example).
We don’t know a whole lot about the Cohen raid, except that it was so egregious in terms of violation of the attorney/client privilege (and for the president of the United States, at that) that it had better be for an excellent reason, because this action is extreme and unprecedented.
Meanwhile, the anti-Trump press is making the most of the “Trump is fuming” story. Well, I’m fuming too, and not because I’m so intent on protecting Trump or any other Republican. It’s because I want to see people protected from over-reaching fishing expeditions (see the John Doe prosecutions), and certainly don’t want to see partisan witch-hunting prosecutions of any president for minor matters. And make no mistake about it, if Trump’s lawyer really did make some sort of $130K payment to Stormy Daniels to keep her quiet (ordinarily a completely legal action) and it is thought to somehow be a campaign contribution because there was an imminent election at the time, that is a matter so iffy in terms of interpretation (reasonable minds may differ on whether it was a violation at all, even if the worst comes out) and so essentially trivial that it’s not worth a raid that violates the attorney-client privilege and it’s not worth an impeachment—although of course a president can be impeached for just about any reason if the political winds happen to blow that way.
There’s so much more in this story—and so much that’s not yet known—that I have turned to my usual legal go-to people, lawyers I have seen over time, in many situations, as the most non-partisan and fair of all. One is libertarian Jonathan Turley, whose take on this mostly involves Cohen, and sees him as bait to lure Trump into some sort of misstep in reaction:
…[W]e still are unclear as to whether Cohen was acting for himself or his client or his shell company in paying off adult film star Stormy Daniels just days before the election.
Cohen signed the now-infamous nondisclosure agreement with Daniels on behalf of “EC LLC,” which is basically himself. He allegedly never conferred with Trump or got his consent for paying $130,000 in hush money. Moreover, Cohen has talked about securing $20 million in penalties from Daniels for himself, not for Trump.
Even when a valid, clear attorney-client relationship exists, that privilege can be set aside in cases of crime or fraud…
The president could ultimately pardon Cohen, while the special counsel could give him a deal. Some at the Justice Department may be counting on Trump’s aggressive tendencies to do the rest. In running to Cohen’s rescue, the president could easily find himself the prize rather than the predator in this conflict.
That seems to take as a given that Trump is the quarry, but doesn’t really address the question of whether this is a proper behavior for a special prosecutor appointed to investigate another matter entirely: to use other courts (in this case, the U.S. Attorney’s Office of the Southern District of New York) to launch an iffy prosecution in order to pressure a president into a reactive misstep, and to violate the confidentiality of his communications with his own attorney along the way.
Let’s look at liberal-but-usually-fair lawyer Allan Dershowitz; who said that the silence of the ACLU on this—which “would be on every TV station in America jumping up and down” if it happened to Hillary Clinton, but is instead issuing forth a “deafening silence”—is “appalling.”
Note also that the article I just linked puts forth an idea common to most writers on the subject of the Cohen raid, which is the assumption that it was Trump appointee Geoffrey Berman, Acting Southern District U.S. Attorney in Manhattan, who approved the warrant being sent to the judge for the ruling. The idea that a Trump appointee approved this was used as justification for the idea that it must have involved something very serious and egregious, with lots of probable cause.
But it turns out that Berman had already recused himself, and we don’t know why. What we do know is that he had nothing to do with this.
There is also a discussion between Mark Levin and Andrew C. McCarthy on the Cohen raid (McCarthy is usually especially good on the law), which you can listen to here. The reason I’m not commenting on that is that it’s long and I haven’t had a chance to listen to it yet myself, so I don’t know what McCarthy and Levin say. I may weigh in on that later, but I wanted to get this post up ASAP. So this is my quick take on the whole thing so far.
[ADDENDUM: This is also part of what I mean by “broader context”—the incredible double standard of the law. One of the strongest foundations of our legal system is that justice should be blind, which means (among other things) that it should not be differentially applied to members and/or leaders of different parties.
And yet:
Trump voters and even fair-minded middle-of-the-roaders consider the crimes committed by Hillary Clinton and wonder at the double standard. She and her team smashed phones and computers to bits after the evidence therein was subpoenaed. Oops. Hillary Clinton and her chief minion Cheryl Mills claimed attorney-client privilege when Mills, herself, was under investigation for obstruction. Did Hillary answer any of the FBI’s questions? We don’t know as they didn’t record the session. Oops. And then, classified emails showed up on Hillary’s assistant’s husband’s computer who is in prison for pornographic interaction with a minor online. Has the Clinton Foundation or Huma Abedin’s home or Hillary’s bathroom been no-knock raided yet?
No.
And then there’s the business of how this Russia investigation started: opposition research that turned out to be specious was used as evidence to wire-tap a Trump associate who had ticked off the number two at the FBI, Andrew McCabe. So the FISA system was used to harm political opposition ”” the leadership of the FBI, DOJ, and the FISA court were used as a way of “insurance” against Trump. And, boy, has it worked! The investigation prompted by a butt-hurt James Comey based on made-up evidence based on illegal leaks by Comey to the press now leads to scooping up all communications between Donald Trump and his attorney to be revealed to FBI investigators. Sounds fair!
Stipulate to the fact that Michael Cohen made some illegal payment to Stormy Daniels and it somehow entangles the President and the President is pressured to resign or face impeachment, what is this doing to the body politic?
Very Righteous Republicans claim that the moral high road demands justice or else justice is mocked. Really? This whole dog and pony show doesn’t seem like it’s mocking justice? When all of America knows, even the most delusional Democrat, that no Democrat would be subjected to this circus, justice is a joke. (The inevitable mocking response by Republicans keen on calling out hypocrisy doesn’t change the warped justice: “But Hillary!” Two sets of rules is not justice.)
There is no winning here. The cheerleaders for the investigation pull, pull, pull at the ever finer thread holding the states united. They seem to have no idea what fearsome forces they play with. Americans rightly see this fiasco as the intent to undo an election that nearly everyone “important” finds revolting.]