During an appearance on Fox News, Representative Trey Gowdy (R-S.C.) defended a referral by special counsel Robert Mueller that led to the raid of the president's personal lawyer's home, office, and hotel room last week.
“I don’t know what Mueller was supposed to do other than what he did. When a prosecutor comes in contact with information or evidence of a crime, what are you supposed to do, other than refer to the appropriate jurisdiction?" Gowdy asked Chris Wallace on "Fox News Sunday."
Gowdy reminded Wallace that Mueller's referral was authorized by Rod Rosenstein, the deputy attorney general:
Now if Mueller had kept something tangential or unrelated to himself, then I’d say fine, you can criticize him but he came into contact with potential criminality. He referred it to the U.S. attorney’s office of jurisdiction, and he did so with the permission of Rod Rosenstein.
Gowdy also responded to reports that President Donald Trump is considering firing Rosenstein, adding that he does not see any basis for firing the deputy attorney general:
As for Rod Rosenstein, I don’t see a basis for firing him and his handling of this probe. Now he’s the one who drafted that original jurisdiction for Mueller, so if you think it’s too broad, then you got to direct your criticism toward Rosenstein, and not to Mueller. If you’re upset with Rosenstein because he’s slow-walking document production to Congress, take that up with him. But how this is Mueller’s fault just defies logic to me.
The scandal surrounding Trump attorney Michael Cohen has only intensified since the raids.
Agents stormed his Manhattan office, “seizing records related to several topics” including payments to Stephanie Clifford (aka Stormy Daniels), an adult film actress.
Federal prosecutors in Manhattan obtained the search warrant after receiving a referral from special counsel Robert Mueller, who oversees the federal investigation into Russian interference during the 2016 presidential election. The New York Times notes that the search does not appear to be directly related to Mueller’s investigation, and is likely the result of “information he had uncovered and gave to prosecutors in New York.”
Stephen Ryan, an attorney for Cohen, released the following statement, calling the search “completely inappropriate and unnecessary”:
Today the U.S. Attorney’s Office for the Southern District of New York executed a series of search warrants and seized the privileged communications between my client, Michael Cohen, and his clients. I have been advised by federal prosecutors that the New York action is, in part, a referral by the Office of Special Counsel, Robert Mueller.
Cohen has found himself at the center of the questions regarding a payment Clifford received from him as part of the non-disclosure agreement to keep her from discussing a sexual encounter with Trump back in 2006, while he was married to his current wife, Melania, and just a few months after Melania gave birth to their son, Barron. A separate lawsuit filed by Clifford contends that Cohen initiated a “bogus arbitration” hearing against her without notifying her beforehand, and a copy of the restraining order against Clifford confirms that the judge made a “one-party” ruling that did not require her to be notified.
Cohen has claimed that he paid Clifford out of his own pocket and that the president never reimbursed him for the settlement. But during a highly publicized 60 Minutes broadcast, Clifford’s attorney, Michael Avenatti, presented documents showing that the payment was sent to Cohen at his Trump Tower location, and communicated through his official Trump Organization email, indicating that he made the payment on Trump’s behalf. Analysts have posited that the exchange of funds could well be an illegal campaign expenditure on Trump’s behalf.
Since the raid was the result of a “referral” to authorities in the Southern District of New York, analysts believe it’s likely related to a crime that Mueller’s team uncovered but that is outside the scope of the federal investigation. According to Harry Litman, a former U.S. attorney and deputy assistant attorney general, the way the FBI handled the raid demonstrates the seriousness with which the Department of Justice treats material that might be protected by attorney-client privilege.
“It’s very unusual for the Department of Justice to permit prosecutors to raid an attorney’s office and that’s because you want to be careful not to get privileged material,” said Litman.
To get the approval to raid Cohen’s office, prosecutors would have had to demonstrate to a federal magistrate both probable cause and the need for a warrant instead of a subpoena. Additionally, the probable cause would have to relate to a crime centered on Cohen, not Trump or someone else. A “taint team” would also be employed to examine materials before they are handed over to prosecutors to make sure that those conducting the case never see anything that might be “tainted” by attorney-client privilege.
Litman notes that there is only one way the prosecution would be permitted to examine any material that might otherwise fall under the attorney-client umbrella: if it is determined to be part of a crime jointly undertaken by the attorney and the client. The taint team would have to get the approval of the court to present the material to the prosecution.
President Donald Trump reacted to the news that the FBI raided the office of his personal lawyer not long after the New York Times broke the story. He did little to hide his anger, and homed in on Mueller and his team when, in fact, raids were authorized by a United States attorney who was appointed by Jeff Sessions, his attorney general:
So, I just heard that they broke in to the office of one of my personal attorneys, a good man, and it’s a disgraceful situation. It’s a total witch hunt. I’ve been saying it for a long time. I’ve wanted to keep it down. We’ve given, I believe, over a million pages worth of documents to the special counsel.
They continue to just go forward and here we are talking about Syria, we’re talking about a lot of serious things with the greatest fighting force ever, and I have this witch hunt constantly going on for over 12 months now, and actually much more than that. You could say it was right after I won the nomination it started.
And it’s a disgrace, 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. So when I saw this and when I heard it — I heard it like you did — I said that is really now in a whole new level of unfairness. So this has been going on, I saw one of the reporters who is not necessarily a fan of mine, not necessarily very good to me, he said in effect that this is ridiculous, this is now getting ridiculous. They found no collusion whatsoever with Russia, the reason they found it is there was no collusion at all. No collusion.
The president then railed against Hillary Clinton and the Democratic Party. He has often claimed that the investigation into Russian interference is a political ploy––possibly a conspiracy––orchestrated by the opposition party:
This is the most biased group of people, these people have the biggest conflicts of interest I’ve ever seen. Democrats, all — or just about all — either Democrats, or a couple of Republicans that worked for President Obama — they’re not looking at the other side. They’re not looking at the Hillary Clinton, horrible things that she did and all of the crimes that were committed. They’re not looking at all of the things that happened that everybody is very angry about, I can tell you, from the Republican side, and I think even the independent side.
They only keep looking at us. So they find no collusion, and then they go from there and they say, “Well, let’s keep going,” and they raid an office of a personal attorney early in the morning and I think it’s a disgrace.
So we’ll be talking about it more, but this is the most conflicted group of people I’ve ever seen. The attorney general made a terrible mistake when he did this, and when he recused himself, or he should have certainly let us know if he was going to recuse himself and we would have used a — put a different attorney general in. So he made what I consider to be a very terrible mistake for the country, but you’ll figure that out.
In recent days, the president has raged against the probe on Twitter, calling it “A TOTAL WITCH HUNT”, and claiming that attorney-client privilege is “dead.”
In a tweet yesterday, the president voiced concern for his legal team, writing, "I have many (too many!) lawyers and they are probably wondering when their offices, and even homes, are going to be raided with everything, including their phones and computers, taken. All lawyers are deflated and concerned!"
The president's attorneys, in a court filing yesterday, have asked a judge to block his own Justice Department from viewing evidence related to the raids.