The Manhattan United States Attorney’s Office’s remarkable raid of the law office and home of Michael Cohen, President Donald Trump’s personal attorney, is an affront to the rule of law. But it is hardly surprising. It simply confirms a fact about the federal law enforcement apparatus: the DOJ and FBI will stop at nothing to land the ultimate target of an investigation, whether it be Donald Trump or any other American citizen. All of us will learn what the inhabitants of George Orwell’s world in Nineteen Eighty Four figured out from experience: Resistance is futile.
More specifically, the raid demonstrates that the permanent law enforcement bureaucracy, which invariably pursues its own agenda that defies true change and reform, will stop at nothing to remove Trump from office and convict-and-imprison all those who on principle or out of loyalty refuse to cooperate (or, in the immortal words of Alan Dershowitz, refuse “not only to sing, but also to compose”). The bureaucracy functions on its own regardless of who happens to be temporarily in the position of FBI Director or Attorney General or even President. Administrations come, and they go, but the bureaucracy, and particularly the FBI, are there forever, and they target whom they wish. It is a power game, having little to do with politics or political party or ideology; rather, it is an assertion of who is in charge. Trump sealed his fate when he played musical chairs with cabinet members and bureau-heads, while ignoring the entrenched bureaucracy that poses an existential threat to his presidency, as well as to any presidency that the permanent bureaucracy finds it cannot control.
Cohen will fight back like the proverbial banshee, but he will not win. He transferred $130,000 in cash to porn star Stormy Daniels, who promised to stay mum about her apparent tryst with the then-reality TV star (and who dutifully and profitably kept quiet before the election but, no surprise, is now going to profit further from telling). Such monetary transfers invariably violate a veritable spiders-web of banking laws and regulations, not to mention bribery and other laws. The onus for such an arrangement can easily be placed on the shoulders of the extortion victim or his lawyer, rather than the person threatening to tell all unless duly compensated for silence. It is a system easily turned on its head. Robert Mueller, a long-time Department of Justice apparatchik, knows, and plays, the game as finely as the best of them.
Special Counsel Mueller, foolishly, even recklessly appointed to his powerful investigative and prosecutorial position with the single aim of disrupting if not eliminating the duly-elected Trump administration, cannily referred to the U.S. Attorney’s Office in Manhattan the task of following up what Mueller had learned about Cohen’s controversial, perhaps sometimes questionable, practices. That follow-up took the form of an unusual, but possibly (although not clearly) lawful raid on Cohen’s premises and files. FBI agents and others will undoubtedly discover multiple arguable violations of federal law while poring over Cohen’s records, some of which are confidential and privileged.
Because Cohen is a lawyer, the Department of Justice will assign the review of the seized material to a special team of prosecutors and agents in order to protect against the main prosecutorial team being “tainted” by access to privileged information. But this fig-leaf does not obviate the central reality that information that is, by law, supposedly protected by the ancient attorney-client privilege will no longer be truly confidential. On some level, it is little different from the FBI planting a recording device in a church confessional. Even if the penitent’s confession is not used in a court of law, there would be no doubt that the sanctity of the confessional would have been breached, even profaned. In Cohen’s case, the sanctity of Trump’s privilege to confidentially communicate with his lawyer is breached and profaned. Federal agents are privy to the details of those supposedly sacrosanct communications. There is a touch of the uncivilized at work. Anyone who does not see the depth of this uncivilized violation has simply become too imbued with the partisanship of the day.
Yet this drastic step was taken for what in the end will likely turn out to be an ignoble reason, wholly inadequate morally and ethically, and perhaps even legally, given the importance of the protected relationship breached. As noted, the spider’s web of federal laws governing election financing, hidden cash transactions, and virtually anything done within the banking system, makes the Stormy Daniels transaction alone fertile ground for uncovering myriad arguable crimes. And, of course, it is a separate felony to lie, even when not under oath, about the details and purposes of such a transaction, whether in election law disclosure forms, in response to an FBI agent’s interview questions, or other contexts governed by the infamous federal “false statements” statute.
At some point, we all will have to ask ourselves whether this brazen breach of a long-standing and highly-valued privilege, enacted in order to protect the constitutionally mandated right to the effective representation of legal counsel, was justified in order to learn whether a married private citizen (Trump was not yet, of course, in public office) lied about a one-night stand and enlisted his lawyer to pay-off the woman whose loose lips could sink, if not his reputation and his standing among those who he hoped would vote for him, then at least his marriage.
Given the vagueness and over-breadth of federal criminal law, it’s highly likely that Cohen, who honed his skills and reputation as a hard-edged advocate for Trump, committed some federal crime while operating in that complex and edgy arena. The plethora of vague and broad criminal statutes and regulations has become so numerous that no individual can possibly have them all in mind, and so vague that not even an Attorney General or a Supreme Court justice can be counted on to understand what the law requires and what it forbids.
Indeed, Robert H. Jackson, perhaps our most accomplished Attorney General and arguably the Supreme Court’s most distinguished justice, articulated the reason seasoned criminal defense lawyers should not be surprised by the assault on Cohen. After his appointment as attorney general by President Franklin D. Roosevelt, Jackson, on April 1, 1940, assembled his chief prosecutors and gave them a lecture about the dangers of excessive prosecutorial zeal. The federal law books, Jackson explained, are “filled with a great assortment of crimes,” and a prosecutor “stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.” Because this power is inherent in the vagueness and broad reach of federal criminal statutes, prosecutors can too easily succumb, Jackson warned, to the temptation of first “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”
If President Trump had any foresight and wisdom when he unexpectedly (in the eyes of many) won the presidency, his highest priorities should have been to reform federal criminal law while delving deep into the bowels of the Criminal Division of the Department of Justice and its investigatory and enforcement arm, the FBI. The Bureau remains an organization that never shook itself (and the rest of us) free of the ghost of its founder and long-time director, the infamous J. Edgar Hoover, in whose dubious honor the FBI building in Washington remains named. (The current craze to re-name buildings that remember or honor disreputable historical figures has not, alas, reached the J. Edgar Hoover FBI building.)
It is difficult to argue that Trump is qualified to be president. He has frittered away any and all opportunities for true reform that were perhaps within his grasp during the first year after his surprise electoral victory. Instead of going after the all-powerful but largely hidden apparatchiks within the law enforcement bureaucracy who threaten American liberty, and instead of weeding out the poseurs and influence-peddlers and army of hangers-on who have given Washington a bad name, he embarked upon a chimerical, disorganized and egomaniacal program that reminds one more of a Trump-emceed television program than an effort at nation-rebuilding.
Resolving the national controversy over whether Trump is a transformative change-force, or a greedy marauder and reckless buffoon, will now be an interrupted process. Left alone, the faux-mogul (who makes part of his living selling his bloated reputation in the form of naming rights on buildings that he does not own) might well have imploded. Any opportunity for true reform – reform that would not likely have been in the offing had Hillary Clinton won – will have been lost. The President, and All of the President’s Men, will go down in a welter of prosecutions that will undo the results of an American presidential election where clearly many voters were disgusted with the status quo and hence voted against the expectations of journalists and the predictions of pollsters. Cynicism will prevail all around.
The ultimate shame of this sordid and reckless prosecutorial scenario is that the nation will be deprived of the opportunity, in the next presidential election, of acting intelligently and constructively on the lessons that should have been but were not learned from the presidential election of 2016. The main lesson should have been that the time had come to eschew the faux business mogul as well as the faux feminist, and elect a president of both real competence and genuine values. Perhaps the nation will redeem itself in 2020. One only hopes. But regardless of how the next election turns out, much institutional damage will remain. At the very least, lawyers and clients will no longer feel secure communicating with each other.
Harvey Silverglate is WGBH/News’ Freedom Watch columnist. Silverglate, a criminal defense and civil liberties lawyer, is the author of Three Felonies a Day: How the Feds Target the Innocent (2011). Nathan McGuire assisted in research and editing for this piece.