Wire tapping the phone of the president’s lawyer? That’s quite a measure. But NBC News reports that federal investigators did just that — tapping the phone of Michael Cohen, President Trump’s personal lawyer.
According to the report, the feds tapped Cohen’s phone before they raided his home, office, and hotel room. That makes sense. Once the raids occurred, they could expect Trump to be cautious enough not to call Cohen.
Apparently, though, Trump wasn’t that cautious. Rudy Giuliani told NBC that Trump did call Cohen after the raid. That’s in addition to at least one call Trump reportedly made before the raid but after the tap. Thus, the feds seem to snare the president coming and going.
Assuming the accuracy of NBC News’ report, was it the feds’ intention to listen to Trump-Cohen communications? I suspect so. What calls other than ones with Trump did the feds hope to listen in on? Cohen may (or may not) have engaged in illegal dealings with Russians or other foreigners, but I understand these to be old transactions. Cohen wasn’t likely to be making phone calls in connection with them (nor, as I understand it, would a tap be authorized to investigate “old crimes”). More likely, he would be making calls about Stormy Daniels related matters — and quite possibly receiving them from Trump.
In this sense, the surveillance of Cohen, assuming it occurred, reminds me of the surveillance of Carter Page. There seems to have been no compelling reason to tap the phone of Page, who still has not been charged with a crime. The surveillance arguably made sense only as an entree into Trump world.
I think it’s reasonable, albeit speculative, to view the surveillance of Cohen, if it occurred, the same way.
Tapping Cohen’s phone would, of course, require a number of “sign-offs.” Federal prosecutors in the Southern District of New York (as opposed to Mueller’s team) would have to ask for it. A judge would have to approve it. So too, presumably, would someone high up in the Justice Department.
It’s questionable, however, whether any of these sign-offs would be difficult to obtain, given the anti-Trump animus that pervades the federal bureaucracy and judiciary, and DOJ’s likely desire to defer to its local prosecutors. Alan Dershowitz suggests that obtaining them would be easy. The fact that James Comey has vouched for the “devotion to rule of law and truth” of federal investigators in New York may be telling, and not in the way Comey intends.
This is all speculation on my part. I await the analysis of those who can speculate more knowledgeably.
But it’s not speculation to note the extraordinary nature of tapping the phone of the president’s lawyer, if that happened. The presumption against such a measure should be overwhelming. But when it comes to trying to injure this president, the presumption seems to be that anything goes.
UPDATE: Now, NBC News says Cohen’s phones were being monitored by a pen register, not a wiretap. A pen register captures the “to and from” phones numbers, but not the content of calls and texts.
I’m glad I put all those qualifiers (“assuming it’s true,” “if it happened”) in my post. You have to with NBC News.