In an extraordinary series of events, the FBI executed a no-knock raid on the office, home and hotel of Donald Trump’s personal attorney, Michael Cohen.
The President, seated alongside his top military and civilian national security advisers to discuss a response to the Syrians’ use of chemical weapons, launched into a rant in which he did not rule out firing special counsel Robert S. Mueller III, accused law enforcement of bias, whined that Hillary Clinton was not being prosecuted, suggested Deputy Attorney-General Rod J. Rosenstein had behaved improperly in signing off on the Foreign Intelligence Amendment Act warrant to conduct surveillance on Carter Page, railed again at Attorney-General Jeff Sessions for not recusing himself — and thereby allowing the investigation to proceed — and deemed execution of a warrant signed off on by a federal judge and approved by a US Attorney and Deputy Attorney-General, both of whom he appointed, to be an “attack” on the country.
Let’s start with the raid. The Washington Post reports:
“Michael Cohen, the longtime attorney of President Trump, is under federal investigation for possible bank fraud, wire fraud and campaign finance violations, according to three people with knowledge of the case.
“FBI agents on Monday raided Cohen’s Manhattan office, home and hotel room as part of the investigation, seizing records about Cohen’s clients and personal finances. Among the records taken were those related to a 2016 payment Cohen made to adult-film star Stormy Daniels, who claims to have had a sexual encounter with Trump, according to another person familiar with the investigation.
“Investigators took Cohen’s computer, phone and personal financial records, including tax returns, as part of the search of his office at Rockefeller Centre, the second person said.
“In a dramatic and broad seizure, federal prosecutors collected communications between Cohen and his clients, including those between the lawyer and Trump, according to both people.”
Let us not understate how extraordinary a development this is. The standard of proof required to raid any attorney’s office is extraordinarily high. To raid the President’s office, a federal judge or magistrate must have seen highly credible evidence of serious crimes and/or proof that Cohen was hiding or destroying evidence, according to legal experts.
“The FBI raid was the result of an ongoing criminal investigation not by Mueller but by the interim US Attorney personally interviewed and selected by Trump himself, pursuant to a warrant issued under strict standards by a federal judge, subject to approval by the head of the Criminal Division,” constitutional scholar Larry Tribe said.
He warns that “firing Sessions or Rosenstein — or reining in Mueller — would trigger a crisis for the Constitution and our national security but wouldn’t even extricate Trump from criminal investigation of his innermost circle”.
In short, Tribe concludes, “this is every bit as shattering as many have surmised”.
What we don’t know is whether the suspected wrongdoing extends to Trump or is solely attributable to Cohen. (By referring the matter to the New York prosecutor, Mueller may have signalled this is not germane to the Russia investigation; however, any possible crimes concerning Stormy Daniels, for example, may or may not implicate Trump.) Whatever the FBI sweeps up may very well further enmesh Trump in an investigation in which what seemed like a series of separate topics — Trump’s personal finances, potential obstruction of justice, possible Russian collusion and hush money paid to a porn star — have begun to bleed into one another. Trump is as vulnerable as he has always been, in part because he plainly does not know what federal prosecutors now have in their possession and because intense pressure may be brought to bear on Cohen to “flip” on Trump.
Trump cannot take much comfort in the attorney-client privilege. For one thing, it applies to legal communications; if Cohen is acting as a businessman/”fixer”, no privilege may attach. Moreover, the attorney-client privilege cannot apply to communications that are part of a crime — eg, a conspiracy to obstruct justice. Trump once said investigating his finances was a “red line” for Mueller; the latest move in raiding Cohen transgresses any limitation Trump could possibly have dreamt up. His reaction reflects his fury in not being able to fend off Mueller.
Trump’s response was disturbing on multiple levels.
First, he in essence declared war on the rule of law. “It’s, frankly, a real disgrace. It’s an attack on our country, in a true sense. It’s an attack on what we all stand for,” said the President, who now equates the operation of the criminal-justice system under the rule of law to be an attack on the country. He is the country in his eyes. Those who challenge him are enemies of the country. There is no better formulation of his authoritarian, anti-democratic mindset than this.
Second, his tirade against Sessions should rekindle concerns that he is contemplating firing him and putting in a flunky to protect himself. “The Attorney-General made a terrible mistake when he did this, and when he recused himself,” Trump said. “Or he should have certainly let us know if he was going to recuse himself, and we would have used a ... put a different attorney-general in. So he made what I consider to be a very terrible mistake for the country.”
That, too, is a picture-perfect distillation of his warped view of the presidency. He hands Mueller another admission that he thinks the DoJ should protect him, instead of conducting investigations into criminal and counterintelligence matters.
Third, Trump’s attempts to discredit Mueller’s team and the FBI should highlight the necessity of Congress protecting the special counsel. (“This is the most biased group of people. These people have the biggest conflicts of interest I’ve ever seen.”) When he says the investigation is a “witch-hunt”, he may be ploughing the way to fire Mueller and/or Rosenstein, or refuse to co-operate with an interview. In either event, we would face a constitutional crisis.
Fourth, Trump’s insistence that his campaign has been exonerated from “collusion” — “So they find no collusion, and then they go from there and they say, ‘Well, let’s keep going.’” — is baseless. More than 70 different contacts between the Trump team and Russian-related figures have been found. Multiple indictments and plea deals have been struck. The investigation continues. His false certainty that there is no evidence of collusion can now be seen as the motive for his attempts to discredit and derail the investigation, to obstruct justice, in other words.
Finally, Trump’s rambling, unhinged reaction, after his attorneys no doubt counselled him to keep quiet, should shake his supporters. The pressure of the investigation and vulnerability to prosecution and/or impeachment are not going to vanish. His family and his fix-it lawyer will not stop Mueller. His TV friends cannot keep the FBI at bay. He lashes out like a cornered animal. The angrier and more panicked Trump becomes, the greater chance he will behave in extreme and destructive ways.
“The President cannot help himself,” former White House ethics counsel Norman Eisen told me. “Instead of doing his job as our chief federal law-enforcement official and allowing the rule of law to operate unimpeded, he lashes out when he feels personally threatened.”
He adds: “The President’s words were more befitting a mob don when the feds are closing in. Given Michael Cohen’s role in Trump’s past, perhaps they are. The American people will not stand for any Trump attempt to match his hostile words with aggressive action against Mueller, Sessions, Rosenstein or other DoJ officials. If he does, it will be the beginning of the end for his presidency.”
Now would be a good time for Republicans to find their spines, remember their oaths and act to insulate Mueller and Rosenstein from Trump. A simple declaration that firing either would be an impeachable offence would, frankly, be a help to Trump. He could use some outside restraint.
• Jennifer Rubin writes the Right Turn blog for The Washington Post, offering reported opinion from a conservative perspective