The FBI Break-in

raid

Yesterday, FBI agents, under the direction of the U.S. District Attorney for the Southern District of New York (also known as Manhattan), and acting pursuant to search warrants, raided the office, home, and hotel room of Michael Cohen, Trump’s personal attorney and fixer.

Trump, understandably scared out of his head, responded just as you would expect a cornered animal to respond.

I want to address two points.

“Attorney-Client Privilege is Dead”

So Trump claimed, yesterday.

The legal principle of attorney-client privilege protects communications between a lawyer and a client, made in the course of the attorney-client relationship. The legal doctrine is complicated, with exceptions and qualifications. Its application to real life situations is often problematic, even in routine civil and criminal cases. Its application to the Michael Cohen raid will likewise be much debated going forward—in the remote event that Trump can secure competent legal representation.

The most vital qualification is the crime-fraud exception. Suppose my name is Daniel Defendant and I am being charged with shooting Cock Robin, and suppose I say to my lawyer, “Yup, I did indeed shoot that SOB Robin.” That statement is privileged, because it is a statement about a past act, made in the course of seeking legal counsel. I can’t be compelled to testify about what I said to my lawyer. My lawyer can’t be compelled to testify that I said it. And if I said it in writing to my lawyer, the document may not be used in evidence against me.

But suppose I say to my lawyer, “You know, I’m going to shoot that bastard Cock Robin, and will you please hide the murder weapon for me?” That’s a case where the lawyer is being asked to aid in the commission of a crime, the “crime-fraud exception” kicks in, and there is no attorney-client privilege.

This makes things complicated. Section 9-13-420 of the United States Attorneys Manual, reproduced at the end of this post, spells out relevant procedures for raids such as the one yesterday on Michael Cohen.

A Conspiracy of Democrats?

Geoffrey S. Berman, currently the interim U.S. District Attorney for the Southern District of New York, authorized the raid, after one or more potential crimes were referred to him by Special Counsel Robert Mueller.

Attorney General Sessions appointed Berman after Trump had fired his predecessor—and had personally interviewed Berman as a replacement. Berman had previously been Rudi Giuliani’s partner at the Greenberg Traurig firm, and had contributed more than $5000 to the Trump campaign. (This might have been part of a “bundled” contribution solicited by the law firm; I don’t know.)

An August, 2017 N.Y. Times article provides considerable insight into Mr. Berman’s experience, character, and personality.

***

Extract from the U.S. Attorneys Manual:

9-13.420 – Searches of Premises of Subject Attorneys

NOTE: For purposes of this policy only, “subject” includes an attorney who is a “suspect, subject or target,” or an attorney who is related by blood or marriage to a suspect, or who is believed to be in possession of contraband or the fruits or instrumentalities of a crime. This policy also applies to searches of business organizations where such searches involve materials in the possession of individuals serving in the capacity of legal advisor to the organization. Search warrants for “documentary materials” held by an attorney who is a “disinterested third party” (that is, any attorney who is not a subject) are governed by 28 C.F.R. 59.4 and USAM 9-19.221 et seq. See also 42 U.S.C. Section 2000aa-11(a)(3).

There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients. Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search. Therefore, the following guidelines should be followed with respect to such searches:

  1. Alternatives to Search Warrants. In order to avoid impinging on valid attorney-client relationships, prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law. Consideration should be given to obtaining information from other sources or through the use of a subpoena, unless such efforts could compromise the criminal investigation or prosecution, or could result in the obstruction or destruction of evidence, or would otherwise be ineffective.

NOTE: Prior approval must be obtained from the Assistant Attorney General for the Criminal Division to issue a subpoena to an attorney relating to the representation of a client. See USAM 9-13.410.

  1. Authorization by United States Attorney or Assistant Attorney General. No application for such a search warrant may be made to a court without the express approval of the United States Attorney or pertinent Assistant Attorney General. Ordinarily, authorization of an application for such a search warrant is appropriate when there is a strong need for the information or material and less intrusive means have been considered and rejected.
  2. Prior Consultation. In addition to obtaining approval from the United States Attorney or the pertinent Assistant Attorney General, and before seeking judicial authorization for the search warrant, the federal prosecutor must consult with the Criminal Division.

NOTE: Attorneys are encouraged to consult with the Criminal Division as early as possible regarding a possible search of an attorney’s office. Telephone No. (202) 305-4023; Fax No. (202) 305-0562.

To facilitate the consultation, the prosecutor should submit the attached form (see Criminal Resource Manual at 265) containing relevant information about the proposed search along with a draft copy of the proposed search warrant, affidavit in support thereof, and any special instructions to the searching agents regarding search procedures and procedures to be followed to ensure that the prosecution team is not “tainted” by any privileged material inadvertently seized during the search. This information should be submitted to the Criminal Division through the Office of Enforcement Operations. This procedure does not preclude any United States Attorney or Assistant Attorney General from discussing the matter personally with the Assistant Attorney General of the Criminal Division.

If exigent circumstances prevent such prior consultation, the Criminal Division should be notified of the search as promptly as possible. In all cases, the Criminal Division should be provided as promptly as possible with a copy of the judicially authorized search warrant, search warrant affidavit, and any special instructions to the searching agents.

The Criminal Division is committed to ensuring that consultation regarding attorney search warrant requests will not delay investigations. Timely processing will be assisted if the Criminal Division is provided as much information about the search as early as possible. The Criminal Division should also be informed of any deadlines.

  1. Safeguarding Procedures and Contents of the Affidavit. Procedures should be designed to ensure that privileged materials are not improperly viewed, seized or retained during the course of the search. While the procedures to be followed should be tailored to the facts of each case and the requirements and judicial preferences and precedents of each district, in all cases a prosecutor must employ adequate precautions to ensure that the materials are reviewed for privilege claims and that any privileged documents are returned to the attorney from whom they were seized.
  2. Conducting the Search. The search warrant should be drawn as specifically as possible, consistent with the requirements of the investigation, to minimize the need to search and review privileged material to which no exception applies.

While every effort should be made to avoid viewing privileged material, the search may require limited review of arguably privileged material to ascertain whether the material is covered by the warrant. Therefore, to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a “privilege team” should be designated, consisting of agents and lawyers not involved in the underlying investigation.

Instructions should be given and thoroughly discussed with the privilege team prior to the search. The instructions should set forth procedures designed to minimize the intrusion into privileged material, and should ensure that the privilege team does not disclose any information to the investigation/prosecution team unless and until so instructed by the attorney in charge of the privilege team. Privilege team lawyers should be available either on or off-site, to advise the agents during the course of the search, but should not participate in the search itself.

The affidavit in support of the search warrant may attach any written instructions or, at a minimum, should generally state the government’s intention to employ procedures designed to ensure that attorney-client privileges are not violated.

If it is anticipated that computers will be searched or seized, prosecutors are expected to follow the procedures set forth in the current edition of Searching and Seizing Computers, published by CCIPS.

  1. Review Procedures. The following review procedures should be discussed prior to approval of any warrant, consistent with the practice in your district, the circumstances of the investigation and the volume of materials seized.
    • Who will conduct the review, i.e., a privilege team, a judicial officer, or a special master.
    • Whether all documents will be submitted to a judicial officer or special master or only those which a privilege team has determined to be arguably privileged or arguably subject to an exception to the privilege.
    • Whether copies of all seized materials will be provided to the subject attorney (or a legal representative) in order that: a) disruption of the law firm’s operation is minimized; and b) the subject is afforded an opportunity to participate in the process of submitting disputed documents to the court by raising specific claims of privilege. To the extent possible, providing copies of seized records is encouraged, where such disclosure will not impede or obstruct the investigation.
    • Whether appropriate arrangements have been made for storage and handling of electronic evidence and procedures developed for searching computer data (i.e., procedures which recognize the universal nature of computer seizure and are designed to avoid review of materials implicating the privilege of innocent clients).

These guidelines are set forth solely for the purpose of internal Department of Justice guidance. They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal, nor do they place any limitations on otherwise lawful investigative or litigative prerogatives of the Department of Justice.

See the Criminal Resource Manual at 265, for an attorney office search warrant form.

 

 

 

 

Aardvark! Aardvark! Aardvark!

aardvark

Homeland Security to Compile Database of Journalists, Bloggers

Seeks contractor that can monitor 290,000 global news sources

‘Media influencer’ database to note `sentiment’ of coverage

The U.S. Department of Homeland Security wants to monitor hundreds of thousands of news sources around the world and compile a database of journalists, editors, foreign correspondents, and bloggers to identify top “media influencers.”

It’s seeking a contractor that can help it monitor traditional news sources as well as social media and identify “any and all” coverage related to the agency or a particular event, according to a request for information released April 3.

The data to be collected includes a publication’s “sentiment” as well as geographical spread, top posters, languages, momentum, and circulation.

Don’t forget me, Homeland Security! That’s Arius A. Aardvark, Esq., a su servicio.

Is There a Lawyer in the House?

main-lawyers

Writing in the New York Times, someone named Paul Campos, who teaches law at the University of Colorado, asks, Why Can’t Trump Find Legal Help? Professor Campos reports,

As Robert Mueller’s Russia probe moves forward, the Trump administration has approached a slew of prominent law firms and attorneys, only to be told that while, in the words of Dan Webb and Tom Buchanan of Winston & Strawn, “the opportunity to represent the president [is] the highest honor” that can come a lawyer’s way, they must respectfully decline that honor. This left the president relying on a legal team who, with the exception of former Hogan Lovells lawyer Ty Cobb, features no criminal defense lawyers, let alone attorneys with experience in the sort of investigation Mr. Mueller is conducting.

The reasons top firms and lawyers are giving for refusing to work for Trump include conflicts of interests with current clients, the possibility of alienating sources of future business, the president’s reluctance to follow legal advice, his tendency to ask lawyers to engage in what Ted Boutrous of Gibson, Dunn & Crutcher referred to delicately as “questionable activities,” and his history of not paying his bills.

The good professor doesn’t tell us the source of his information about rebuffs by “a slew of prominent law firms and attorneys,” but the statement rings true, and I am pretty sure it is true.

Prof. Campos approached the issue by examining campaign contribution patterns among the top ten law firms in 2012 and 2016 and found a surprising shift. For example,

Data from Kirkland & Ellis, a Top 10 firm with a reputation for leaning Republican, highlight how extreme that shift was. In 2012, Kirkland & Ellis’s lawyers made 20.6 percent more contributions to Mr. Romney’s campaign than they made to Mr. Obama’s. In 2016, the same firm’s lawyers were 34 times more likely to contribute to Mrs. Clinton’s campaign than to Mr. Trump’s.

The notable lack of support for Mr. Trump inside top law firms reflects a broader pattern among elite institutions. For example, at the investment bank Goldman Sachs, contributions to the Trump campaign were 99 percent lower than those to Mr. Romney’s campaign four years earlier.

From these data, the professor deduced that “elite” lawyers don’t like Trump, and that is why they are all refusing to provide legal counsel to him.

I find the campaign contribution data very interesting, but the professor’s interpretation is unpersuasive. Speaking as a former partner of law firms ranked, respectively, about number 30 and about number 20 in the nation, here is what I think. I think that K&E turned off the money spigot for Trump not because of generalized personal animus, but rather due to the specific concern: it’s unwise to put the country’s affairs in the hands of a delusional narcissist.

Lawyers at large law firms have no objection at all to working for very unpleasant people. They do it every day of the year. Nor do firms with white collar criminal defense practices object to working for white collar criminals. Who the hell do you think their clients are? If criminal defense lawyers refused to defend criminals, they would soon be out of business.

It’s not personal animus. It’s not about welching on legal bills—because he can deal with that little matter by getting the rubles up front. It’s partly about a prospective client who probably not listen to your counsel and who will probably defame you with a tweet after he fires you.

But most of all, it’s about fear that working for Trump will harm your reputation among law graduates so badly that you will no longer get the pick of the litter. And if you don’t get the pick of the law school graduate litter, then you can bend over and kiss your “top 10” status goodbye.

An Aardvark Addendum

And a postscript about Kirkland & Ellis. I never visited their ladies room—and God only knows what was in there. But in the men’s room they provided two brands of mouthwash and two brands of hair spray, along with a machine to spiff up the polish on your shoes.

So remember, my friends, if you want an lawyer whose shoes are shined to a high polish, whose breath smells of roses, and whose every hair is glued in place, then K&E is the firm for you. And their failure to give any money to the Trumpster proves their good judgment. Their place at the top of the profession is secure.

丢脸

pig farmer

Let me pose two questions.

First question: what keeps Trump awake at night? You know the answer: his greatest fear is losing his base—the one quarter to one third of the country who still say they support him. Because he sure as hell isn’t going to expand his base. And if his base is either pissed off at him, or perceives itself to be harmed by him, then just stick a fork in him, ‘cause he’s done. And he knows it.

Now for the second question: What about Xi Jinping, President of the People’s Republic of China, General Secretary of the Chinese Communist Party, and Chairman of the Central Military Commission? What keeps him awake at night?

Is Xi deathly afraid that the people who would be most directly affected by rising soybean prices—namely, the Chinese pig farmers who depend on American soybean meal—will vote against him in the next election?

No, ladies and germs, that is not President Xi’s fear. Because elections don’t much matter in China. Because he controls the levers of power. Because he has great influence, if not outright control, over what his people hear.

So, is Xi free of any fears and concerns? Enquiring Minds Want to Know.

No, he is not. What scares Xi shitless is that he and his posse might lose face—the phrase came from China, see headline above—in some kind of foreign confrontation. Because if they lose face, it won’t be the pig farmers who turn against them. It will be pretty much everybody in China, because pretty much everybody in China remembers their country’s century of humiliation by foreigners. And pretty much everybody would turn on an elite that permitted another national humiliation. And all hell would break loose.

So when Trump stages one of his penis measuring exercises, the Chinese leadership cannot back down. Backing down would literally be suicidal.

Nor can they work out a reasonable compromise in private, and then live with it. They cannot do that because Trump would immediately tweet that his dick has been demonstrated to be three inches longer than Xi’s. And the Chinese leadership would lose face. And major political instability in China might result.

So what will happen? Trump has put himself in a position where there will either be an all-out trade war, or where he has to back down. Bigly.

Your Definitive Guide to Authoritarian Sorting

sorting

In The Contract with Authoritarianism, Thomas Edsall helpfully summarizes half a dozen recent studies of political psychology. Interesting stuff. I won’t try to summarize the summary but will share a few highlights.

Authoritarians are Easily Identified

People who agreed that “our country is changing too fast, undermining traditional American values” mostly voted for Trump. People who agreed that “by accepting diverse cultures and lifestyles, our country is steadily improving” mostly voted for Hillary Clinton.

Detailed charts and graphs prove the point.

Another really good test, apparently, is asking what traits you would like to see in your offspring: independence versus respect, curiosity or good manners, self-reliance or obedience, being considerate or being well behaved.

Whole Lot O’ Authoritarian Sortin’ Goin’ On

The political sorting by personality types is increasing at a rapid pace. But I expect you knew that already.

Why So Much Authoritarian Sorting?

Edsall’s piece is short on explanations. One study refers to “three trends—polarization, media change, and the rise of what many people see as threats to the traditional social order.” But “polarization” is a name for the phenomenon, not an explanation. And “the rise of what many people see as threats” is also a poor explanation. Just this morning, Trump is trumping a threat of illegal border crossing, when illegal border crossing is at a decades-low point. He and his followers have freaked out over “American carnage” when crime is down. So why is there an increasing perception of threat when actual threats are down?

The answer must lie in the third named factor: “media change.” Obviously, the rise of social media is a big part of the picture. Another part is that the plutocrats have become really, really good at manipulating a highly gullible one quarter to one third of our population. In fact, the plutocrats have become so good at manipulating the manipulatible that they are by way of fouling their own nests.

Nothing exceeds like excess.