Code of Ethics2

02/10/2018 To search Michael Cohen’s home and office, the FBI had to clear a higher-than-normal bar - The Washington
mal bar - The Washington Post
The Washington Post
Politics Analysis
To search Michael Cohen’s home and office, the FBI had to
clear a higher-than-normal bar
By Philip Bump
Philip Bump
National correspondent focused largely on the numbers behind politics
Email  Bio  Follow 
April 9
Here’s what we don’t know: We don’t know specifically what the FBI was looking for when it raided
the office of Michael Cohen, high-profile attorney for the Trump Organization. We don’t know what
they found; we don’t know what investigations might be bolstered or curtailed by the evidence they
seized.
What we do know, though, is interesting enough. The raid, which covered Cohen’s office and,
according to the Wall Street Journal, his home and a Manhattan hotel room, included the seizure of
information about the payment made to porn star Stormy Daniels shortly before the 2016 election
and it included communications between Cohen and President Trump — meaning it included
communication between an attorney and his client.
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
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02/10/2018 To search Michael Cohen’s home and office, the FBI had to clear a higher-than-normal bar - The Washington Post
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.
1. Before obtaining a search warrant, investigators had to try to obtain the evidence in another way, such as by
subpoena.
2. 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.)
3. The prosecutor had to confer with the criminal division of the department before seeking the warrant.
4. 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.
5. 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.
6. 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
02/10/2018 To search Michael Cohen’s home and office, the FBI had to clear a higher-than-normal bar - The Washington Post
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.
Philip Bump
Philip Bump is a correspondent for The Washington Post based in New York. Before joining The Post in
2014, he led politics coverage for the Atlantic Wire. Follow 
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02/10/2018 To search Michael Cohen’s home and ofﬁce, the FBI had to clear a higher-than-normal bar - The Washington

mal bar - The Washington Post

We know, too, that this was an exceptional move by the government.

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