openpolitics.com

The Stormy Daniels scandal could be more perilous for Trump than the Russia investigation has been.

.. Barack Obama’s 2008 presidential campaign was caught hiding the sources of 1,300 large campaign donations, aggregating to nearly $2 million. The campaign also accepted more than $1.3 million in unlawful donations from contributors who had already given the legal maximum.

.. Under federal law, such campaign-finance violations, if they aggregate to just $25,000 in a calendar year, may be treated as felonies punishable by up to five years’ imprisonment — with offenses involving smaller dollar amounts punishable by incarceration for a year or more

.. Cohen’s law practice, which is the focus of the investigation involving the payment to Daniels (whose real name is Stephanie Clifford), is in the SDNY.

.. The SDNY is no longer run by Preet Bharara, whom Trump dismissed along with other Obama appointees after taking office. The acting U.S. attorney is Geoffrey Berman, a Trump appointee named by Attorney General Jeff Sessions to serve on an interim basis while awaiting confirmation.

.. ABC News reports that Berman is recused from the Cohen investigation

..  Cohen’s obvious relevance to Mueller’s investigation — he is accused in the Steele dossier of being a liaison between the Trump campaign and Russia (an apparently uncorroborated claim that Cohen convincingly denies); and he was on the receiving end of emails from Felix Sater, a Russian immigrant and Trump business associate, who boasted that his friend Vladimir Putin would help “get Donald elected.”

.. When one reads the guidelines, one suspects that there must be more to the SDNY’s investigation of Cohen than the Stormy Daniels transaction — a suspicion echoed in the aforementioned Times report, which describes the searches as “related to several topics, including a payment to a pornographic film actress” (emphasis added).

.. If the only matter under investigation were a potential campaign-finance violation that would normally not be grist for criminal prosecution, it would be outrageous to raid a lawyer’s office — especially the president’s lawyer.

Not only must high-level Justice Department approval be obtained before seeking a search warrant for an attorney’s premises; the prosecutors and their superiors must explore whether less intrusive investigative alternatives — such as seeking the desired materials by grand-jury subpoena — would be viable.

.. The issuance of search warrants necessarily means a federal judge found probable cause that evidence of at least one crime would be uncovered in Cohen’s premises. In addition to the potential campaign-finance offense, the feds are reportedly weighing bank-fraud charges — possibly on a theory that steps taken to hide the nature and purpose of the payment to Clifford entailed misrepresentations to a financial institution, although that is just speculation at this point.

.. The clean team determines what files are relevant to the matter under investigation, with any irrelevant files returned to the attorney.

.. the attorney and any affected clients are given an opportunity to claim that the files contain privileged communications and should be returned. Where the parties cannot agree, such privilege claims are decided by a judge.

.. the clean team ensures that the investigation team is not tainted by exposure to privileged communications.

.. As I explained last November, when we learned that Mueller had forced an attorney who had represented Manafort to testify against him, there is a so-called crime-fraud exception to the attorney–client privilege.

.. If a client’s communications with a lawyer are for the purpose of carrying out a fraudulent scheme, they lose any claim to confidentiality. Theoretically, then, Trump and Cohen have a legal as well as a factual problem. Legally, if they conspired to execute a payment in violation of campaign laws in order to silence Clifford, their communications in this regard would not be privileged.

Factually (if implausibly), both Cohen and Trump claim that the former did not tell the latter about the payment to Clifford; and that Cohen made the payment in his personal capacity, not as Trump’s lawyer. How, then, can they now claim attorney–client privilege in connection with the transaction?

.. the porn-star payment undeniably happened. I argued then, and I’m even more convinced now, that “the best argument in Trump’s favor is one that claims mitigation, not innocence.”

.. As for Trump’s fitness for the presidency, the scandal tells us exactly nothing that we didn’t already know about the flawed man that Americans chose to elect.