The world is awash in “hot takes” on the news that President Trump’s personal attorney, Michael Cohen, is under criminal investigation. On Monday, the FBI executed a search warrant at his home, his office and a hotel room that he rented. Claims are already resonating that the search violated Trump’s attorney-client privilege and reflect more excess from Special Counsel Robert Mueller. (Trump himself called the search a “disgrace” and again threatened to fire Mueller.) I want to take a step back and offer a few more thoughts that, perhaps, shed a little light on the attorney-client issue.
(As an aside, before doing so, I want to note the absurdity of Trump blaming Mueller for the search. As many others have pointed out, Mueller referred the matter to the Justice Department, where the investigation was assigned to the U.S. Attorney’s Office for the Southern District of New York. That office (run by a Trump appointee) then procured the warrant—with the approval of a magistrate judge—and worked with the FBI to conduct the search. In this regard, the special counsel’s actions and the Justice Department referral are completely unlike the Starr investigation on which I worked many years ago. There, Attorney General Janet Reno kept expanding the Starr investigation into new areas—mostly, I think, as a matter of convenience. Here, the department seems intent on cabining the Mueller investigation to the scope it was originally initiated for—and to also be willing to spin off unrelated matters to the relevant local U.S. attorney’s office. That’s a good example of the system functioning as it should—and it certainly is no “disgrace.”)