Day 446: Why Michael Cohen Is in Far Worse Shape Than Any Other Member of Team Trump

Hint: for one, he can’t play the Trump card.

FBI officials raided the office, home and hotel room of Donald Trump’s lawyer, Michael Cohen, on Monday. They seized documents related to Cohen’s personal finances, as well as documents related to his clients. According to The Washington Post, Cohen is “under federal investigation for possible bank fraud, wire fraud and campaign finance violations, according to three people with knowledge of the case.”

While it appears as though information triggering the raid came from special counsel Robert Mueller, the warrant application and associated work was undertaken by federal prosecutors in New York, outside the purview of the special counsel.

Cohen has kept a relatively high public profile since Trump’s campaign days, appearing on news shows, tweeting defenses of his boss, granting interviews and, most recently, being in the news for paying off a porn star related to an alleged affair by Trump.

Trump was fuming about the raid, ranting in front of TV cameras about the unfairness of it all and questioning — without a tinge of irony — why Hillary Clinton’s emails are not being investigated further.

Despite Trump’s ire, former U.S. Attorney for the Southern District of New York Preet Bharara noted that Trump handpicked everyone involved in the decision to seek a warrant for the search.

Raiding an attorney’s office and grabbing sensitive files is extraordinarily rare. So rare, in fact, that it’s an insight into the strength of the government’s case against Cohen.

Cohen has many, many problems. More so, in fact, than anyone under investigation right now.

For one, the most obvious: the crimes he’s being investigated regarding are substantial and carry the possibility of significant prison time. If convicted, Cohen, 51, could spend decades in prison.

Additionally, as opposed to Mueller’s team telling Trump that he’s currently a subject in his probe as of now, Cohen is clearly an actual target of a federal investigation. This means that prosecutors are actively building a case against him with the intention of proving it in court. The search was not merely a fact-finding mission, but rather was likely accomplished to prevent destruction of evidence.

Also problematic for Cohen is that while this is currently a federal investigation, certain crimes could be pursued at the state level. This would prevent Trump from being able to pardon Cohen for any of those crimes.

Finally, Cohen’s biggest problem is that he’s Trump’s lawyer, meaning everyone else’s best card to play — flipping on Trump — is almost completely unavailable to him. Attorney-client privilege is one that extends to the client, meaning only the client can waive it. If Trump told Cohen anything that he’s done — “I spoke with the Russians and they’re going to help me win this thing,” for example — that would likely be privileged.

By trying to flip, Cohen would not only violate one of the most most important ethical obligations for attorneys, but any information gleaned would likely be unusable by prosecutors in their investigation of Trump. Any new areas of investigation resulting from Cohen’s unethical disclosures would similarly be considered “fruit of the poisonous tree,” meaning it would be unusable in the prosecution of Trump as well.

There are a limited amount of circumstances that Cohen could flip on Trump. One would be if Trump were implicated in any crimes and blames Cohen. If Trump claims that he was unaware of Cohen’s misdeeds and Cohen acted on his own, then Cohen is entitled to break privilege to defend himself against his client’s claims.

Additionally, there are certain, very limited communications between attorneys and clients that are not privileged. The most interesting one here is the crime-fraud exception, which makes a communication unprivileged if it is made with the intent to commit or cover up a crime or fraud. This would apply if it’s Trump’s present or future intention to cover up a crime or fraud. With Mueller reportedly looking into obstruction of justice counts for many individuals, there are ways that the crime-fraud exception could apply in the present matter.

Overall, Cohen is in significant legal jeopardy for a multitude of reasons. Unlike many of his comrades in the Trump orb, he has far less cards to play.

446 days in, 1016 to go

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