Commentary: 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 10 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?