Trump, Michael Cohen, and the Russian Mafiya

    This week, Federal investigators, pursuant to a warrant sought by U.S. prosecutors in New York, raided the office of Donald Trump's lawyer, Michael Cohen, and confiscated files and his computer.

    Why is that so significant?  The attorney-client privilege matters to lawyers.  It hides all sorts of chicanery.  Judges and opposing lawyers just sigh at the phrase, and don't try to breach the privilege.  It’s a foundation of our legal system.   

    For a prosecutor to seek, and a judge to grant, such a warrant, both had to have seen damned strong evidence of serious misconduct.

    This isn't a Congressperson getting a subpoena to embarrass a political opponent.  It's career participants in the legal system acting within that system.  

    Deputy Attorney-General Rod Rosenstein signed off on this. Not some anonymous minion.  No Democratic Party ideologue – a Republican Trump appointee.  A long-time government lawyer who saw what the Trump people just did to career FBI officer Andrew McCabe.  (They fired him just quickly enough to screw up his retirement pension.)  If you're Rosenstein, you don't sign off on this unless you know it's righteous. 

    The crime-fraud exception to the attorney-client privilege means that the privilege doesn’t protect a communication used to commit a crime or defraud someone.  For example, IF Trump told Cohen to pay to silence two women just before the 2016 election, and if paying her off was a crime, the exception might prevent using the privilege to hide Trump's participation in the crime. 

    The privilege doesn’t apply to everything a lawyer does.  Cohen doesn't just try cases.  He's a fixer.  He plays – and brags about playing – a bigger role, sometimes minimally related to lawyering.  Did prosecutors argue that the communications regarded non-legal work?  Or that Trump or Cohen had somehow waived the privacy of their communications?

    We don't know that whatever they have on Cohen implicates Trump in wrongdoing.  But they have something they're sure is significant.  And Cohen reportedly tapes most conversations.  Meanwhile, even Warren Harding never mustered such a collection of openly corrupt officials ripping us off in so many ways. 

    Trump is jumping up and down and throwing tantrums.  That has strengthened the will of some Republicans to pass a law that if Trump fires Mueller, Mueller can appeal to the court, get a hearing within ten days, and try to show that he wasn’t fired for good cause.  We don't know yet if that will pass, but it's under more intense consideration.  (Trump should welcome this protection from himself, some allies say!)

    If Trump can't personally fire Mueller, and Sessions is recused, then Rosenstein could fire Mueller.  If he declined, Trump could fire him and appoint some minion to do the dirty work.

    Older folks have seen this movie.  Richard Nixon played Trump, and Archibald Cox played Mueller.  And it worked out better for Archie (who, by the way, also drove a pickup truck) than for Tricky Dick.  

    What's different?  Nixon – plus Johnson's conduct of the war, and the second Bush's “misstatements” to get us into another war – have torpedoed our innocence, and we don't trust presidents the way folks trusted Eisenhower.  Too, no one anticipated Nixon's Saturday Night Massacre (firing Cox and his deputy), and no one thought to prevent it.  And Nixon started with a much bigger landslide and more respect (though not affection) than Trump has ever had.

    On balance, it feels like we’ve been here before.  What have we learned since then?
                                                             -30-

[The column above appeared this morning, Sunday, 15 April (gee, my father would have turned 99 yesterday - I wish he were here) 2018 in the Las Cruces Sun-News, as well as on the newspaper's website and on KRWG's website.  During the week both KRWG and KTAL (101.5 FM -- or stream on www.lccommunityradio.org) will air a three-minute spoken version.]

[There's a lot more to say.  First of all, we should be clear that although Special Prosecutor Robert Mueller was one source pointing prosecutors toward Cohen, the investigation is being carried out by the U.S. Attorney's Office in New York, separately from Mueller's investigation.  Secondly, reports indicate that Mueller will soon provide Congress with the first of two reports on the results of his investigation.]

[Trump allies see the  Cohen investigation as at least as dangerous as Mueller's.  Cohen and others are desperately trying for a court order that prosecutors not review the material they seized; and that's as it should be, given concerns about the attorney-client privilege and perhaps the rights of clients unrelated to Trump and the Republican Party.  U.S. District Judge Kimba Wood said Friday that she didn't yet have enough information to rule, and asked lawyers, including Cohen, to come back to her courtroom Monday bringing additional information, including a list of Cohen's clients.  

I'm way too far away to predict the outcome; but it's clear that at least as to some of the material, prosecutors have a great argument that Cohen was not even acting as a lawyer.  (The court filing says evidence from email accounts “indicate that Cohen is in fact performing little to no legal work, and that zero emails were exchanged with President Trump.” If Trump didn't communicate with Cohen, there's no attorney-client privilege.)  Judge Wood also told Cohen's lawyers, she expected "a good-faith effort to answer the Court's questions" and said, “You need to be prepared to substantiate that the relationship was an attorney-client relationship.”

Prosecutors are accusing Cohen's and Trump's lawyers of delay; Trump's lawyer said the decision in this case could affect everyone who consults an attorney and relies on confidentiality.  They've asked the Court either to let them go through the materials and determine which they think should be kept confidential or to appoint a special master to do so.   It seems likely to me that the Court will order an "in camera" (secret) court-review of some of the seized material, which is a very common step in cases that raise such issues; but I'll bet that as to some of the material the Court will rule right away.  The whole process could take awhile.

Prosecutors accuse Cohen's / Trump's side of just trying to delay a reckoning.  They're probably right as to some of the material, which isn't entitled to attorney-client confidentiality but is potentially harmful; but there may also be serious issues here that aren't so clearcut as to some material. ]

 [She also told Cohen's lawyers, she expected "a good-faith effort to answer the Court's questions" and said, “You need to be prepared to substantiate that the relationship was an attorney-client relationship.”]

 [Perhaps one of the least noticed but more significant bits of new information this week was that Cohen, Trump's personal lawyer, visited Prague in late summer of 2016.  "So what?" you may ask, reasonably.  Well, the famous Steele dossier, which Trump's supporters have been maligning, said, as I recall, that Cohen had gone to Prague for a meeting related to Russian support for Trump.  Cohen strenuously objected that he had never done so, had not even been in Prague.  If evidence has surfaced showing conclusively that he was in Prague that summer, (a) his credibility is torpedoed and the credibility of Steele's dossier much enhanced, (b) he could face perjury charges if he said under oath what he said to the public, and (c) that's some indication that he was there for an unsavory purpose, because if he just went to Prague to get laid or see the museums, why deny he went there at all?]

[Remember, Christopher Steele was the former MI6 agent who alleged, among other things, a "golden shower" incident involving Trump.   Steele alleged that the Russians were blackmailing Trump, and that Cohen went to Prague to negotiate.  Cohen denied he'd even ever been to Prague, and posed a picture of his passport on social media.  It's not clear what evidence Mueller now has, but some note that Cohen could have kept his passport clean by entering     through the open border with Germany.  Question: did the Russians give Cohen a copy of the "golden shower" tape, to verify that they had one -- and was it among the materials seized this week?]

[I can't resist adding one experience we had with a court's in camera review.  We represented a major client claiming a company had defrauded it by claimingto have developed a self-driving forklift.  (This was decades ago.)   In fact, the company was working on the new-fangled forklift, but perhaps wasn't as far along as it had claimed in order to get the contract.  As part of discovery, we asked for all documents discussing the forklifts or the project.   We got a lot, but the company objected that the personal diary of a key employee working on the forklifts was not subject to discovery.  His religion encouraged him to keep a journal, and this was for his kids, ultimately.  Nothing to do with the project, they argued.  The Court accepted our argument that there should be an in camera review.  This wasn't as much material as there is in the Cohen case, so the Judge (or his clerk) read the diary and ruled that while most of it needn't be turned over, there were 17 pages mentioning the project.   One of those pages actually contained the employee's account of an inspection by representatives of our client, during which they watched the forklift work, with the employee riding on it but not controlling it, and thanked God that he'd been able to use the brake on the side of the forklift our clients couldn't see!]

[ Thanks to Charlotte for the reference to the interesting Rolling Stone article, Michael Cohen's Ties to Russia, Crime, and Trump, based on a new book (an excerpt from by Seth Hettena from his new book, Trump / Russia: A Definitive History, to be published by Melville House Publishing on May 8th. ).  Basically, Cohen's whole life -- starting in childhood -- has been intertwined with Russian mob figures, and much of his professional career had more with connecting Russian money to Donald Trump than with practicing law.  

Cohen's uncle owned the a Brooklyn catering hall and event space that was a well-known hangout for Russian gangsters. Cohen and his siblings all wre part-owners.   According to the uncle, Cohen didn't give up his stake in the club until after Trump's election!)

Two former federal investigators told Hettina that Cohen's father-in-law, Firma Shusterman, a naturalized U.S. citizen from Ukraine who came to the U.S. in 1975, introduced Cohen to Donald Trump and also set Cohen up in the taxi business.  Shusterman owned a fleet of taxicabs with two partners.  All three men were convicted of a money-laundering related offense in 1993. A former federal investigator said the father-in-law might have been a silent partner with Trump and a conduit for Russian investors in Trump properties and other ventures."  The investigator also said Trump's group gave Cohen his job as a favor to the father-in-law, but Cohen denied that to Hettina, commenting: "Your source is creating fake news.")

Cohen once ran 260 yellow cabs with his Ukrainian-born partner, the "taxi king" Simon V. Garber, until they parted ways acrimoniously in 2012. A private investigator who examined Trump's Russia connections during Trump's presidential run, testified to the House Intelligence Committee that Cohen "had a lot of connections to the former Soviet Union, and that he seemed to have associations with organized crime figures in New York and Florida – Russian organized crime figures," including Garber.

Cohen, his in-laws, and others connected to him invested at least $17.3 million with Trump, according to Hettina.  Hettina adds:
"In the 1990s, there was an informal group of federal and local law enforcement agents investigating the Russian Mafiya in New York that called themselves 'Red Star.' They shared information they learned from informants. It was well known among the members of Red Star that Cohen's father-in-law was funneling money into Trump ventures. Several sources have told me that Cohen was one of several attorneys who helped money launderers purchase apartments in a development in Sunny Isles Beach, a seaside Florida town just north of Miami. This was an informal arrangement passed word-of-mouth: 'We have heard from Russian sources that … in Florida, Cohen and other lawyers acted as a conduit for money.'"

It's no news that Trump was kept afloat by Russian and Ukrainian money for years.  I remember seeing during the election a documentary that included footage of Trump's son bragging about all the money.  Hettina provides some numbers: "a Reuters investigation found that at least 63 individuals with Russian passports or addresses have bought at least $98.4 million worth of property in the seven Trump-branded luxury towers. And that was a conservative estimate. At least 703 – or about one-third – of the 2044 units were owned by limited liability companies, or LLCs, which could conceal the property's true owner. Executives from Gazprom and other Russian natural resource giants also owned units in Trump's Sunny Isles towers. In an observation that several people I spoke with echoed, Kenneth McCallion, a former prosecutor who tracked the flows of Russian criminal money into Trump's properties, told me, 'Trump's genius – or evil genius – was, instead of Russian criminal money being passive, incidental income, it became a central part of his business plan.' McCallion continued, 'It's not called 'Little Moscow' for nothing. The street signs are in Russian. But his towers there were built specifically for the Russian middle-class criminal.'"

Anyway, I've quoted or summarized enough from the Hettina excerpt.  There's more in the Rolling Stone piece, and still more in the soon-to-be-published book.]

[Can't resist adding that as more and more information comes out, the Trump-Cohen "attorney-client privilege" argument looks sillier and sillier.  First, it's clear that prosecutors had already looked at Cohen's emails, pursuant to an earlier subpoena, and knew he did "little or no legal work."  Secondly,  Trump (in tweets) and Cohen's lawyers (in court) claimed that the seized files involved confidential communications to and from many other "innocent clients"; but Cohen has often said he has just one client, Trump; and when Judge Wood asked for a client list, Cohen's lawyers couldn't provide one.  Given a few extra hours, they still couldn't.  Now they're supposed to bring in a list Monday.  Nonsense!  I practice a little law too.  Under current rules, you need to keep some records, for various reasons, and if I had to provide a client list I could do it instantly.  So could most lawyers.]