Do the Cohen searches open the door for Jeff Sessions?

To obtain clarity on the raid of Michael Cohen’s home, office, and hotel room plus the seizure of attorney-client material, I turned to this article by Andy McCarthy. As usual, Andy delivers plenty of clarity. I recommend reading his entire article.

I want to make just one point. Andy writes:

There had to have been [Southern District of New York U.S. Attorney’s Office]–Main Justice consultations [about the raid] because Justice Department guidelines require that district U.S. attorney’s offices receive Washington approval before seeking a warrant to search an attorney’s premises. (See U.S. Attorney’s Manual, Section 9-13.420.) 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). Prosecutors are admonished that, because raiding a lawyer’s office has serious constitutional implications, it should be avoided unless truly essential to a significant criminal investigation.

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.

That the government must have decided they were not viable is remarkable. A prosecutor gets a search warrant when the subject cannot be trusted to cooperate and hand over materials voluntarily. But Cohen has been cooperating with investigators, at least ostensibly. His counsel, Stephen Ryan, maintains that Cohen has been giving information to “all government entities,” intimating that he has cooperated with Mueller in addition to providing extensive documentary evidence and testimony to congressional committees.

To summarize, McCarthy is saying that the raid was improper unless Cohen is being investigated for more than the Stormy Daniels transaction and there were no less intrusive means than the search and seizure of obtaining documents relating to that “more.”

Were these conditions satisfied? It seems likely. Even if one doesn’t trust Robert Mueller’s shop, and there are reasons not to, it looks like both Rod Rosenstein and the U.S. Attorney’s office for the Southern District of New York signed off on the raid. A judge must have done so, as well.

One person who didn’t sign off is Jeff Sessions. He recused himself from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” This covers the payment made by Cohen to Stormy Daniels during the campaign, even though Sessions almost certainly had no involvement in, or knowledge, of that payment.

But the recusal may not extend to other matters as to which the SDNY U.S. Attorney might be investigating Cohen. Indeed, Mueller himself concluded that these matters, whatever they are, fall outside the scope of his Russia-campaign investigation. This suggests that any non-Stormy matters for which Cohen is being targeted do, indeed, fall outside of Sessions’ recusal. If so, Sessions can involve himself.

Thus, I think Sessions can ask the SDNY to identify for him the matters it is investigating Cohen about that do not relate to the payment of Stormy Daniels. If there are such matters, and Sessions confirms that they do not relate to the presidential campaign, Sessions can oversee these aspects of the investigation (or so it seems to me).

If the SDNY can’t identify any matters that do not relate to payment to Stormy, Sessions will know that yesterday’s searches and seizures were improper. As McCarthy says, it would be outrageous to raid a lawyer’s office — especially the president’s lawyer — over this kind of matter.

Sessions would probably be barred by the terms of his recusal from taking action to redress this outrage. He could not shut down the investigation or order that the seized documents be returned and not be used against Cohen. However, he could, I think, tell the president what he has learned. He could also fire Rod Rosenstein for not scotching the raid.

To be clear, I don’t assume that the SDNY is only investigating Stormy stuff. More likely, it is investigating real, serious potential crimes. In that case, as I’ve said, Sessions can participate unless the crimes involve matters relating to the presidential campaign.

Oversight by Sessions wherever in these investigations it is possible would be desirable.

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