After law enforcement agents raided the home and office of Michael Cohen, Donald Trump’s attorney and close confidant, the president protested: “It’s frankly, a real disgrace. It’s an attack on our country, in a true sense. It’s an attack on what we all stand for.”
The president has it exactly wrong. The raid shows that the rule of law is alive and well, despite the president’s repeated attempts to undermine it. Our basic principles are protected by an independent system of justice that even the president and his pals cannot suppress or subvert.
Cohen’s attorney, Stephen Ryan, called the operation “inappropriate and unnecessary,” and claimed that his client has been cooperating fully with federal investigators. That’s a powerful argument, and if Cohen really was being helpful, the raid could be construed as a PR stunt designed to intimidate, rather than investigate, a potential witness.
But legal experts make a persuasive case that the rules are strict and the test high for any prosecutors seeking to initiate such an intrusion. They would need the approval of the Justice Department, a federal magistrate and a U.S. Attorney in New York.
To gain that go-ahead, prosecutors would have to make a compelling case for immediate action. “Doing a search warrant rather than a subpoena suggests investigators thought Cohen, if given a subpoena, would possibly destroy evidence or withhold key evidence, particularly if it were incriminating,” Clinton Watts, a former FBI agent, told The Atlantic.
Trump tweeted that “Attorney-client privilege is dead!” But in fact, that privilege is not absolute.
“There is a crime-fraud exception to attorney-client privilege,” Robert Weisberg, a Stanford law professor, told The Washington Post. “The affidavits that went into the warrant application — and possibly direct conversations with the judge — would have to give at least prima facie reason to believe that the communications, even where they were privileged, give some indication that Cohen was involved in committing or planning some kind of fraud.”
That’s why Ken White, a criminal defense attorney and former prosecutor, wrote in The New York Times that the case against Cohen could be “highly dangerous” for both the lawyer and his client: “It’s perilous for the president, whose personal lawyer now may face a choice between going down fighting alone or saving his own skin by giving the wolves what they want.”
The president’s fury raises, yet again, a real possibility that Trump has considered before: firing Robert Mueller, the special counsel who is investigating possible collusion between the president’s campaign and Russia. It was Mueller who referred the Cohen matter to federal prosecutors in New York.
Asked by a reporter if he would fire Mueller, the president didn’t reject the idea. “We’ll see what happens,” he said. “Many people have said, ‘You should fire him.'”
His press aide, Sarah Sanders, added ominously that Trump “certainly believes he has the power” to terminate the special counsel.
Sen. Charles Grassley, the Republican chairman of the Judiciary Committee, was certainly right in predicting that “it would be suicide for the president to fire” Mueller, but Republicans still refuse to consider legislation that would protect the special counsel.
So the question remains: What mechanism is out there for Trump’s critics to hold him accountable, should he ax Mueller or otherwise sabotage the legal process?
That’s why the fight for control of the House of Representatives is so critical. Democrats need to win 23 seats in November to gain a majority, and that outcome would give them enormous leverage to run committees, hold hearings, call witnesses, ask questions, subpoena documents and generally make life miserable for the White House.
In an extreme case, the House is empowered to initiate impeachment proceedings, which is exactly what a GOP-run chamber did to Bill Clinton in 1998. In fact, House Republicans are already planning to stir up their base this fall by emphasizing the impeachment threat should the Democrats win.
Even some Republicans are now predicting a Democratic takeover, with GOP pollster Frank Luntz telling Fox News: “I think the Republicans are in deep trouble in the House, and the Senate as well. If the election were held today, frankly, I think Republicans would lose both.”
Sen. Mitch McConnell, the majority leader, told a TV show back home in Kentucky: “We know the wind is going to be in our face. We don’t know whether it’s going to be a Category 3, 4 or 5.”
Elections are the ultimate way to hold the president accountable. That’s what the American system really stands for.
Steve and Cokie Roberts can be contacted by email at firstname.lastname@example.org