Search Warrants for Cohen
Don: Sources tell CNN President Trump is furious about the FBI raid on his attorney and they say no one wants him to do anything when he’s this angry. But what will all this mean for the investigation? I wanna bring in now, CNN legal analyst Page Pate and Areva Martin, also, Areva is the, I should tell you, the author of the bestseller, “Make it Rain.” Defense attorney Joe Tacopina is here, as well. Good evening, thank you all for joining us. Joe, a source tells CNN that the raid on president Trump’s attorney, Michael Cohen, was, quote, “Mostly related to Stormy Daniels.” And that the warrant also mentioned election laws. The coverage of the Stormy Daniels scandal took so much heat for so long, and now here we are, right?
Joe: You know, I mean, Don, I really called this a month ago because when Michael Cohen went out there and pronounced that he paid the $130,000 to Stormy Daniels and Trump knew nothing about it, then, of course, his client confirmed that last week on Air Force One, it sealed the deal. This day was coming because what they just both admitted that this was a fraud. That the agreement…forget the agreement, that’s null and void and that’s fraudulent because you cannot bind the client. As a lawyer, when the client doesn’t know you’re binding him, you can’t pay money on the client’s behalf without the client knowing it. That’s from the validity of the agreement standpoint. But now what you do is you now tread into campaign finance laws and that territory because this could be looked at as an in-kind contribution at the time of the election. This is a real problem and I’m telling you, this is the reason right here, I strongly believe is, because of the words of both Michael Cohen and Donald Trump.
Don: Wow. Page Pate, it’s also being reported that Cohen is under investigation for possible bank fraud, wire fraud, and campaign finance violations, what does that tell you about this investigation?
Joe: All could be related to the same transaction.
Page: Well, Don, I think this goes way beyond Stormy Daniels. I mean, we can speculate as to why he would be considered for a bank fraud charge, I guess it’s possible that the source of the funds he says he got this off of his, you know, it’s a second mortgage or home equity line. What did he tell the lender that he was using this money for? Suddenly not to pay off a porn star. So maybe there was a false statement in connection with those bank applications, perhaps there are campaign finance violations. But I can’t believe that we would see a search warrant, multiple search warrants being executed on a lawyer’s office and hotel room based upon a possible campaign finance violation. I mean, these are extraordinarily rare, you have to go through so many obstacles to get a search warrant like this before you execute it that I’ve gotta believe it’s something more than Stormy Daniels, and something more than maybe an in-kind contribution.
Don: Areva, what do you think?
Areva: Well, we’ve been listening to…I’ve been listening to the reporting all day, Don, and the reporting is that there is likely a lot more than just the transaction involving Stormy Daniels that the special counsel’s office and perhaps the FBI have been, you know, watching this and watching Michael Cohen. And this is not something that just happened overnight, that this is the result of perhaps weeks and weeks of investigation involving him, and just as Page said, to get a magistrate to sign off on these search warrants, one commentator today said, “This is a subpoena on steroids.” And, you know, just to give your audience some sense of how difficult this is, the attorney-client privilege is what’s at stake here, so when the FBI goes in and gets all of this information, these bank records, these documents from Michael Cohen’s office, they have to be concerned about that, and there’re actually two teams that are going to be involved in looking at this material to make sure that any information that’s given over to these investigators doesn’t violate that attorney-client privilege. And I wanna note that Paul Manafort is the only other person where we’ve seen search warrants, you know, knocks on the doors from the FBI, you know, documents seized from the private residence of someone that’s the subject of the investigation and 96 days after that search warrant, indictments filed against Paul Manafort. So this doesn’t look good for Michael Cohen.
Don: Page, what did you wanna say?
Joe: And Don, understand this, understand this. The way this has to go…this has nothing to do with Bob Mueller, I’ve really seen statements where White House and Trump are attacking Mueller. Mueller at this point has to consult with the Deputy Attorney General, Rod Rosenstein, who works for Trump, by the way. And once there is something that could be outside of his jurisdiction, which this would be if it’s not directly related to Russia, he has to consult with the deputy attorney general, the deputy attorney general then decides. Do I send this to the Manhattan U.S. Attorney’s office, another counsel, or keep it within the Special Counsel, Bob Mueller? Here he sent it outside, but then what has to happen is they have to go to a special unit in the Justice Department, because a lawyer is involved, and you have confidential documents, you have attorney-client documents and communications. So a tag team that gets appointed, and a special unit in the Justice Department has to approve this warrant. This went so high up and has nothing to do with Bob Mueller or Democrats or whatever else he wants. This is the Justice Department, how it works every single day of the week, but for some reason, the president cannot cope with that and I heard him refer to this as a break-in today, a break-in like a burglary or something like that. This is the Justice Department and what chills me as a lawyer, forget about being a defense lawyer or a former prosecutor as I am, is that our president is attacking the foundation of our justice system in this country by calling into question the FBI, the Justice Department, his own attorney general, every judge who ever rules against him. It’s just unhealthy for the sort of the health of this justice system.
Don: Every time something doesn’t go his way or he feels that someone is somehow wrong to him, he attacks them and even if it’s people he appointed, Page, Stormy Daniels’ attorney, Michael Avenatti spoke to Anderson Cooper just a short time ago about Cohen’s situation. Watch this.
Michael: This is a very, very serious matter, needless to say, and as I predicted last week, it appears that the noose is tightening around Michael Cohen. I think the president has considerable reason to be concerned, a lot of faith and confidence has been put in Michael Cohen, I think the expectation was that he was gonna be the fall guy.
But make no mistake about it. There’s gonna be a lot of sleepless nights at the White House from here on out.
Don: …agree? Is Cohen in a lot of trouble, Page?
Page: I think Cohen has to be in a lot of trouble. You don’t execute a search warrant like this, multiple search warrants like this without a solid foundation. What I would love to see is the affidavit supporting these search warrants, the statement made by the agents to establish enough probable cause to get a judge to sign off on this warrant. It’s not a witch hunt, it’s not a fishing expedition, they have identified probable cause…
Don: Hey, Page.
Don: Let me play what the president said about that, then I’m gonna let you finish your statement. Let’s play what he said.
Donald: The attorney general made a terrible mistake when he did this and when he recused himself, or he should have certainly let us know if he was going to recuse himself and we would have put a different attorney general in. And so he made what I consider to be a very terrible mistake for the country. But you’ll figure that out.
Don: But again, that has nothing to do with Cohen, what he was referring to. But anyway, go on, Page.
Page: Well, one thing that was important about that clip, you heard he said, that President Trump said that Sessions made a mistake and then he referred back to not recusing himself. I think in this situation given the fact that main Justice probably knew about these search warrants before they were executed that Sessions had an opportunity to step in and stop this just like the U.S. attorney for the Southern District of New York and no one did. So what does that tell you that’s in this affidavit? What evidence is it that they have pinpointed that Michael Cohen has access to that will prove evidence of some crime? I cannot wait to see what’s in that affidavit because I think it’s gonna shock us all.
Areva: Don, I wanna say, too. You know, Michael Cohen made this bed that he’s now being forced to lie in. All the hubris around being the fixer and, you know, talking about his, you know, the job that he did for Donald Trump that went far beyond that that a lawyer does for a client. And that’s going to come back, I think, and cause serious harm for him because any of those documents or any of those records that were seized today, those documents that don’t relate to him performing services as an attorney for Donald Trump. And we know that he often served as his business adviser, his political adviser, he wasn’t always acting as Donald Trump’s attorney. And there won’t be any confidentiality, there won’t be any attorney-client with respect to any of those documents. So I think Michael Cohen and Donald Trump…I can’t emphasize enough how much they have made their own beds in this situation and been their worst enemies in terms of the rhetoric that they’ve spewed throughout this entire case with Stormy Daniels.
Don: Joe, I want you to hold that thought because Page Pate said that he can’t wait to see what’s in that affidavit. My question to you is, are we ever going to get to see it? I want you to answer it, though, on the other side of the break. We’ll be right back.
Page Pate, Areva Martin, and Joe Tacopina are back with me. So are we gonna see the affidavit? Joe Tacopina?
Joe: Well, the only way we’re gonna see the affidavit is if, unfortunately, for Michael Cohen, is if he gets charged with something and there’s what they call discovery. Or if another individual gets charged based on the fruits, so to speak, the evidence uncovered in the search warrant today. I mean, someone has to get charged. Most likely someone would have to get charged for these documents to ever see the light of day because they’re sealed, they’re not public records at this point. If someone’s charged because of it, the warrant and the affirmation inside the warrant, whatever the agent has sworn out to then becomes subject to challenge, so that’s when we’ll get to see.
Don: Okay. So Stormy Daniels’ attorney says that he will release a composite sketch of a man who allegedly threatened the adult film actress back in 2011. Here’s what he told CNN earlier today.
Michael: We’re gonna be releasing that tomorrow along with a significant reward asking that the public come forward. We are very close to identifying this individual, there is significant evidence that this actually happened. We’re gonna release that in the coming weeks and I’m also confident that when we release this sketch tomorrow and when we offer this sizable reward, someone is gonna come forward and is going to tighten the noose, if you will, on this issue.
Don: Okay, so Areva, I wanna ask you what you make of that move from Stormy Daniels’ attorney. But just to…he was on Anderson later on this evening and he said they weren’t expecting this whole Michael Cohen thing to come about, so it may be in the next 48 hours instead of tomorrow that they’re gonna release it. But what do you think of this move?
Areva: Yeah, Don. You know, earlier today when I was going to come on, we were gonna be talking about, you know, Avenatti’s attempt to depose and his motion to the federal court asking again for an opportunity to depose Trump and Michael Cohen and then we got news of, you know, the search warrant and it just took the news in a different direction. This individual that Stormy Daniels said threatened her, we have no reason to believe that she’s not credible with respect to the threat, we don’t have any evidence to date, though, to suggest that this person was in any way affiliated with Michael Cohen or Donald Trump. We know Michael Cohen has denied being involved in any way, you know, in terms of threatening Stormy Daniels or her daughter that was in the car at the time that it allegedly happened. So it’s gonna be interesting to see if someone does identify this individual and if they can connect the dots between this individual and anyone in the Trump, you know, team, Donald Trump himself, or Michael Cohen, or any other lawyer, or agent of the lawyers. That’s gonna be something we’ll have to see. Right now, no evidence to suggest there was any connection, but I’m glad they are releasing it because if this person this did threaten Stormy Daniels and her daughter, of course, this person should be brought to justice.
Don: Okay, so this is Josh Campbell, you know, Josh Campbell was a former special supervisory agent for the FBI. He’s now a contributor here on CNN. And this is one of his tweets, he said, “This tonight from a former FBI colleague: ‘I’ve been an FBI special agent for 20 years and I’ve only seen a handful of searches executed on attorneys. All of those attorneys went to prison.'” What do you think of that, Page?
Page: Don, that’s consistent with my experience. I’ve been involved with two, where I represented lawyers and yes, in both of those cases, the lawyers were prosecuted. Again, we’ve been talking about it all night, it’s been reported all day. This is truly an extraordinary situation to get a search warrant executed on a lawyer’s office, not to mention the president’s personal lawyer, but any lawyer representing Joe Blow, you have to jump through so many different hoops to get that, that there must be specific credible evidence that, number one, a crime has been committed and number two, you’re going to find evidence of that crime at the attorney’s office. So, again, I’m hopeful that at some point, whether it’s as a result of criminal charges or simply after the investigation has concluded, the affidavit will be unsealed and the American people will know what types of allegations and evidence they actually have relating to this situation because it must be significant.
Don: Yes. So listen, this is the Michael Cohen part of the investigation, which is the Southern District of New York. On the Russian investigation, the president has really had a hard time rebuilding his legal team since his former attorney, John Dowd resigned, that was back in March. And then just after that was announced, Joe diGenova was coming on board, conflicts kept him from joining. Do you think the news of the raid on Michael Cohen, you think it’s gonna make it harder, Joe, for him to rebuild his team?
Joe: No, I mean, look, again, Page said it right, I said it before, it’s an extraordinary circumstance when a lawyer’s office is raided. There has to be something in there that’s real, not just speculation. I think lawyers understand, real lawyers understand where there’s the line and how not to cross…
Don: Talk to me about that, what do you mean? Tell me.
Joe: Well, because there are certain things you can do when representing a client and you have to act within the boundaries, obviously, of the law, but also within the boundaries of the canons of ethics. And you have to understand, you have to know the canons of ethics and know the law that affect when we represent someone. So you can’t go out there publicly and say, “I did something that’s a violation of canons of ethics,” like say, “I bound my client with a settlement agreement, I paid the money myself and I never let him know about it.” I mean, he actually said that publicly, which any lawyer understands is a violation of the canons of ethics and possibly even a crime because they have bank fraud allegations involved here. I don’t think it’s gonna scare a real lawyer away, I mean, real lawyers who understand what their roles and responsibilities are, where the line is, how to fight vigorously, how to fight strongly for a client as I do, we all do every single day, but you also know you do within the boundaries of the canons of ethics.
Areva: Don, I disagree with Joe.
Don: Go ahead: Areva.
Areva: We’ve been hearing reports for the last couple of months about all the big, you know, Washington lawyers, the big New York lawyers are staying away from Donald Trump, that he’s tried to hire multiple lawyers…
Joe: No, no, Areva. You’re right, but, no, no, the question from Don… Yeah, but the question from Don, “Is the Michael Cohen raid gonna scare lawyers away?” I think that’s a different question.
Areva: Joe, let me finish…
Joe: I don’t think there’s a lot lawyers who wanna represent Donald Trump.
Areva: Joe, you said what you said what you said and I’m disagreeing with you. I think it’s going make it very difficult…
Joe: Yeah, but I’m correcting you because you’re not understanding what I said.
Areva: You can’t correct me. I disagree with you.
Don: All right, mommy and daddy are fighting, it’s uncomfortable, but go on.
Areva: I disagree with you that I think is going to make it very difficult for Trump to hire a lawyer and definitely a high-caliber lawyer. And we’ve seen it’s been very difficult for him to do so for multiple reasons, not just what happened today with respect to Michael Cohen, but Donald Trump as a client, he’s a very difficult client, he doesn’t follow the instructions of his lawyers. He talks when he shouldn’t be talking, he tweets when he shouldn’t be tweeting, and he’s the worst client to have for any lawyer, whether you’re a quote, unquote, “real lawyer” or not. So I think this does make it…
Joe: I agree.
Areva: …just all the more difficult for him to hire the kind of high-caliber lawyer that you would need to handle the kind of legal trouble that he finds himself in.
Don: Finally some agreement, Page. So listen, Page, Michael Cohen, though, is one of the president’s closest confidants, he’s his attorney, but is also a friend, a confidant. Now he is tied up in this investigation himself, what does that mean that Trump and Cohen…does it mean that they can’t discuss matters related to Stormy Daniels without it being potentially an obstruction of justice?
Page: “Potentially” is the big word there, Don. And that’s a very good point, I mean, you have to be extraordinarily careful now when you’re talking to a subject of the investigation who’s had a search warrant executed on his office, had documents taken, will likely be approached and interviewed again perhaps by someone in the United States Attorney’s office. So if the president or anyone acting on his behalf suggests that Michael Cohen get rid of some documents, not provide some documents that may not have been seized or in any way tries to influence his testimony or cooperation with the government, yes, that could be a possible charge of obstruction completely separate from the Russian investigation.
Don: This is Monday, what is Tuesday gonna bring? I mean, what is Friday gonna bring? My goodness, these weeks are so long.
Page: Well, Don, that’s the problem because we don’t know what to expect from this president. What we saw today from this president concerns me more than the investigation, because he is unhinged. And Joe is right, a good lawyer would not put himself in the situation where he’s both a friend and a legal counsel to someone like the president in these situations. But Areva is also right, who wants to represent this guy who’s gonna go out there and give this long, just completely uncoached narrative in front of the media about his thoughts on an ongoing investigation? Difficult client, difficult circumstance.
Don: When he’s supposed to be talking about a chemical weapons attack in Syria, which is of the utmost importance and very serious. Thank you, guys, I appreciate your time.
Page: Thank you.
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.