That last point also means that the bar for obtaining a warrant was higher than normal.
An attorney for Cohen told The Washington Post that the search was related to an investigation referred to the Justice Department by special counsel Robert S. Mueller III. In March, The Post reported that Cohen had caught Mueller’s eye, with the special counsel’s team questioning witnesses about Cohen’s actions and requesting documents from Trump’s attorney.
Monday’s raid, though, was conducted at the direction of the U.S. Attorney’s Office for the Southern District of New York, not the special counsel. Last week, Mueller’s team revealed in a court filing that deputy attorney general Rod J. Rosenstein (who, in May 2017, appointed Mueller to serve in his current position) had outlined in a memo last August particular areas for the special counsel’s team to investigate. Mueller could expand those boundaries, but only after getting Rosenstein’s approval. In this case, it seems, Rosenstein referred the question to the U.S. attorney instead.
There are specific rules that come into play before the U.S. attorney would be granted a subpoena, as outlined in the U.S. Attorneys’ Manual. A section titled “Searches of Premises of Subject Attorneys” details six additional safeguards to ensure that the Justice Department isn’t unjustly violating attorney-client privilege. It applies to subject attorneys — people who are “suspect[s], subject[s] or target[s]” of an investigation. That distinction was highlighted last week when The Post reported that Mueller had informed Trump that the president wasn’t a target of the investigation, but only a subject of it. “Prosecutors view someone as a subject when that person has engaged in conduct that is under investigation but there is not sufficient evidence to bring charges,” we wrote at that point. In other words, Trump wasn’t necessarily about to face charges, but he was under investigation. The same, it seems, applies now to Cohen.
To obtain that search warrant, then, the U.S. attorney would have had to meet six conditions, according to the manual.
- Before obtaining a search warrant, investigators had to try to obtain the evidence in another way, such as by subpoena.
- The authorization for the warrant had to come from either the U.S. attorney or an assistant attorney general. (Rosenstein is deputy attorney general, a higher position than assistant attorney general.)
- The prosecutor had to confer with the criminal division of the department before seeking the warrant.
- The team conducting the search had to “employ adequate precautions” to ensure that they weren’t improperly viewing privileged communications between Cohen and his clients.
- The search team would have included a “privilege team,” including lawyers and agents not working the case, which would work to ensure that investigators conducting the search didn’t see privileged communications.
- The investigators had to develop a review process for the seized material.
Even with those checks in place, the U.S. attorney wasn’t guaranteed a warrant. Search warrants granted to U.S. attorneys are approved by magistrate judges serving in U.S. District Court.
The question of what qualifies as privileged communication is complex. Not every communication between an attorney and a client is included. One type of communication that’s excluded: communications between an attorney and a client that might be predicated on committing or covering up a crime.
In a phone call with The Post, law professor Robert Weisberg, co-director of the Stanford University Criminal Justice Center, explained where the lines might be drawn.
“There is a crime-fraud exception to attorney-client privilege,” Weisberg said. “The affidavits that went into the warrant application — and possibly direct conversations with the judge — would have had to give at least prima facie reason to believe that the communications, even where they were privileged, give some indication that Cohen was involved in committing or planning some kind of fraud.”
“Obviously,” he added, “you won’t know until after you see the stuff if the crime-fraud exception applied.” But since you can’t prove that the exception applies until you see the actual communications, the U.S. attorney needed to offer evidence to the judge that such communications were likely. The process for obtaining a warrant in a search like this, he added, was similar to the higher burden required to obtain a wiretap.
In short: The Cohen search warrant almost certainly included decision-making or approval on the part of the second-highest-ranking person at the Justice Department (Rosenstein), a federal judge and the U.S. attorney or an assistant attorney general. Before it was executed, the team would have needed to check a number of boxes meant to reduce the likelihood of improperly seizing privileged material and to make the case to a judge that evidence of criminal behavior would probably be found.
We know, too, that this was an exceptional move by the government.
This article was updated to include Weisberg’s comments.