2018-04-11 / Opinions

Let the facts fall where they may

We understand the frustration caused by the heavy-handed tactics sometimes employed by federal agents, particularly after one of our own reporters experienced it firsthand just recently.

While we are not happy with the methods agents with the Bureau of Alcohol, Tobacco and Firearms used in our county two weeks ago, we did not threaten civil war, and we still respect law enforcement officers, who have a difficult job to do even in the best of times.

On Monday, the Federal Bureau of Investigation served a search warrant on the office, home and hotel room of Michael Cohen, one of the president’s personal attorneys, and a longtime personal friend of the president. We are relying on the memories and experiences of others more learned than we are in this field, but to our knowledge, a warrant has never before been served to search the offices of a president’s personal attorney.

On Tuesday, President Trump attempted to frame this as a “breakin” by the FBI rather than a legally served warrant, and called it “biased,” a violation of attorney-client privilege and a “witch-hunt.” Mr. Trump also floated the notion of firing Special Counsel Robert S. Mueller III. Certain television personalities and other supporters of Mr. Trump threatened civil war. Democrats in Congress warned of severe consequences if Mr. Mueller is fired; Republicans warned the president that such a firing would be “a bad idea.”

It is time for everyone to take a step back, a deep breath and a look at the facts.

· Fact: Attorney client privilege does not exist if the attorney has knowledge that his client broke the law, or if the attorney himself broke the law.

· Fact: Mr. Mueller is a lifelong Republican, not a Democrat as the president has claimed. So are Deputy Attorney General Rod Rosenstein, FBI Director Christopher Wray, and former FBI Director James Comey.

· Fact: Wray, Rosenstein and John P. Cronan, Acting Assistant Attorney General for the Criminal Division, were all appointed to their posts by Mr. Trump. U.S. Attorney for the Southern District of New York Geoffrey S. Berman was appointed by Attorney General Jeff Sessions, another Trump appointee. Mueller was appointed by Mr. Rosenstein. Mr. Trump even personally interviewed Mr. Rosenstein and Mr. Wray before nominating them for their posts.

If bias exists, it should be in favor of Mr. Trump and Mr. Cohen, given that every person involved in directing the investigation was either appointed by the president or appointed by someone who was appointed by the president.

Title 9 of The U.S. Attorneys’ Manual lays out a precise roadmap for prosecutors who wish to search the offices of any attorney.

· The prosecutor must attempt to get the materials he or she is searching for by other means, such as a subpoena or voluntary means.

· If that is unsuccessful, the prosecutor must seek and receive approval for a warrant from the U.S. Attorney, which Mr. Mueller did by working with Mr. Berman. Mr. Berman, in fact, was the prosecutor who applied for the warrant.

· He must then present an affidavit laying out the probable cause for the warrant and the evidence he expects to collect to the director of the Criminal Division, in this case Mr. Cronan, or to the Deputy Attorney General, Mr. Rosenstein.

· The prosecutor must then develop a plan to prevent agents conducting the search from viewing any privileged information, and a plan for a third party such as a judge or another team outside the investigation, to review the material collected to see that nothing protected was taken in the search.

· Only when those requirements are met, may the prosecutor submit the warrant to a judge, who reviews the materials and decides whether the warrant should be issued.

Some of the president’s supporters argue that Mr. Mueller has overstepped his mandate by investigating things outside the interference of Russia in our election, but Mr. Rosenstein has released a memo showing the Special Counsel was authorized to investigate other crimes he might find during the investigation, as long as Mr. Rosenstein approved.

They also argue that the Stormy Daniels affair is only about sex, while forgetting that President Bill Clinton was impeached by a Republican Congress for lying about sex. They also forget that the issue in this is not the sex, but the $130,000 payment to Ms. Daniels a few days before the election. Where did that money come from? Who paid her? Who knew, and when? Mr. Trump opened the door for the payment to be classified as a crime when he publicly denied knowing anything about it. If that is so, and Mr. Cohen paid her from his own pocket, as he said he did, it might be considered an illegal campaign contribution by Mr. Cohen. If Mr. Trump did know and either provided the money or reimbursed Mr. Cohen, it might be considered an illegal campaign expenditure on his part.

Finally, some supporters of Mr. Trump say the investigation should end because it hasn’t found anything. On the contrary. While the investigation could still clear the president himself, 19 people have been charged so far, five have pled guilty, and one has gone to jail.

To be clear, we do not know what Mr. Mueller knows. We also do not know what the FBI found in its searches. We do know that obtaining a search warrant for any attorney’s office is very high hurdle. Obtaining one for the attorney of a sitting president is a pole vault. This is not a matter to be taken lightly, it is not partisan, and it is not a candidate for a so-called “Second Amendment remedy” or a civil war.

This is serious business that goes to the core of this nation’s ideals that all men are created equal, that no one is above the law.

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