President Trump has denounced Monday’s FBI raid of his longtime personal lawyer’s New York office as a break-in, a “total witch hunt,” and even an attack on the United States.
But legal specialists say such raids, while unusual and aggressive, have to be vetted through an arduous legal process approved at the highest levels of the Department of Justice.
Prosecutors typically carry out such searches only if they fear the lawyer might tamper with evidence they are seeking, specialists said.
“It’s just a matter that you don’t trust them, that a subpoena won’t be enough to get what you need,” said Laurie Levenson, a professor at Loyola Law School in Los Angeles and a former prosecutor who was often appointed by courts to review documents seized in such raids.
Put more bluntly, prosecutors might have feared that attorney Michael Cohen would hide, or even destroy, incriminating evidence if they did not seize it first, said Martin Healy, chief counsel for the Massachusetts Bar Association.
“We don’t have the particulars on what they’re looking for,” Healy said. “We do know this is a very serious step when law enforcement raids an attorney’s office. It’s usually based on some very serious evidence that is likely to prove the attorney involved has done something not only unethical, but possibly illegal.”
Cohen’s lawyer has said the raid was carried out after a referral from Special Counsel Robert Mueller to federal prosecutors based in New York. Federal officials have not commented on the raid, and it is not clear whether it was related to Mueller’s investigation of alleged collusion between the Trump campaign and Russia.
Cohen has acknowledged paying pornographic film actress Stephanie Clifford to silence her about her relationship with Trump. The FBI is investigating those payments, and agents seized e-mails, tax documents, and business records from Cohen’s office, according to The New York Times.
The United States Attorney Manual lays out the rules for searching an attorney’s office, describing it as an intrusive step that, “in order to avoid impinging on valid attorney-client relationships,” should be considered only after prosecutors have decided that a subpoena or other method for obtaining evidence would result in its destruction or a compromise in the investigation.
Before applying for a search warrant, a federal prosecutor has to consult with the criminal division at the Department of Justice and seek approval from the US attorney or an assistant attorney general. Rod J. Rosenstein, who was picked by Trump to serve as deputy attorney general, signed off on the decision to raid Cohen’s office, according to The New York Times.
The application must then be approved by a federal court magistrate or judge.
“These [searches] are not law enforcement or prosecutors running amok,” Levenson said.
Getting a warrant approved is not easy, said Donald K. Stern, a former US attorney in Massachusetts who is now managing director of Affiliated Monitors in Boston, which provides ethics and compliance advice to companies.
“This notion that this is somehow a rogue operation is contrary to the fundamental laws” of the country, Stern said. “There is a carefully crafted procedure for doing something like this.”
Before approving a warrant, a judge would have to be persuaded that the lawyer not only has information relevant to the investigation, but that the attorney was an active participant in a crime or was used by his client to commit a crime.
That invokes what is called the “crime fraud exception” to the confidential nature of the attorney-client privilege, Stern said.
Still, he said the public is right to raise questions when prosecutors act so aggressively.
“I would hope that steps like this are restricted to only the most unusual and extraordinary circumstances because it does have the potential to threaten the attorney-client relationship,” he said.
Tracy Miner, a white-collar defense attorney at Demeo LLP in Boston, said she was stunned when she heard about the raid.
“I do think it’s problematic to do it this way,” she said. “If the government starts running into lawyers’ offices and grabbing stuff first and not let people go through the subpoena process where you have a judge hear both sides, it will have a deterrent effect on people going to lawyers to seek out advice in the first place.”
Miner and Stern recently signed an amicus brief filed in US District Court in Boston opposing a motion by prosecutors to disqualify Howard Cooper, the attorney for former state senator Brian A. Joyce, so they could call Cooper to testify against him.
The brief, which was drafted by the Massachusetts Bar Association and other legal organizations, accused prosecutors of infringing on the attorney-client relationship and Joyce’s Sixth Amendment right to legal counsel.
But Stern said the raid on Cohen’s office is not comparable to the legal tactics by the Massachusetts US attorney’s office.
“Cooper is not the subject of any investigation,” Stern said. “And, we don’t know in the Cohen matter if the government is seeking to apply the crime fraud exception. In other words, I think in many ways what happened with Cohen is less of a potential threat to the attorney-client privilege than what is happening with Cooper.”
Maria Cramer can be reached at firstname.lastname@example.org. Follow her on Twitter @globemcramer.