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Robert Mueller grossly oversteps by seizing Michael Cohen’s files

Raid and seizure of Trump attorney’s papers looks like a gross infringement of client-attorney privilege

Whilst the world’s attention is focused rightly on Syria, it is important not to lose sight of an extraordinary and dangerous step which has just happened in the US, and which I suspect is causing Donald Trump far more concern than the situation in Syria.

This is the raid Special Counsel Robert Mueller instigated against Michael Cohen, Donald Trump’s personal lawyer.

Donald Trump is furious about this, and has complained about it far more vocally than he has complained about the situation in Syria.

He is right to be furious.

Michael Cohen is one of the individuals whose name appears in the Trump Dossier, where he is alleged to have attended a secret meeting with Russian officials in Prague.  Cohen denies that the meeting ever took place and has produced his passport to show that he has never been to Prague.

Though Cohen’s denial came in for some ridicule initially, I think that it is now generally accepted as true.

So far as I can tell, the raid on Cohen’s office and his hotel room, and the seizure of his papers, all relate to information which Cohen may have about Donald Trump’s financial affairs and a $130,000 pay-off he made to ‘Stormy’ Daniels, a former porn actress with whom Donald Trump is supposed to have had a one-night stand.

I have not written previously about the ‘Stormy’ Daniels “scandal” because I am completely uninterested in it, as I suspect are most of the American people.

What is beyond dispute is that ‘Stormy’ Daniels “scandal” has absolutely no connection to Russiagate or to the collusion allegations between the Trump campaign and Russia which Robert Mueller is supposed to be investigating.

As for the details of Donald Trump’s past financial affairs, prowling through them in order to find ‘evidence’ of some past connection between Donald Trump and Russia looks like a fishing expedition, a deplorable practice during an investigation, and one which Mueller’s boss Deputy Attorney General Rod Rosenstein gave an assurance would never happen.

What is however particularly outrageous about this raid is that Mueller seems to have specifically targeted documents of Cohen’s which are covered by client-attorney privilege.

Client-attorney privilege – the assurance that legal discussions between an attorney and his client will remain strictly confidential – is one of the fundamental cornerstones of the legal system.   In certain very limited cases – eg. where there is indisputable evidence that the attorney is engaging with his client in a criminal conspiracy – breaching it may be justified.

However that is not supposed to happen lightly, the bar for doing it should be extremely high, and – though I am not familiar with US legal practice – it should not in my opinion happen without first a request for disclosure from the attorney, and – if that request is refused – a court Order granted at a hearing at which the attorney is present.

In this case no request for disclosure appears to have made, and no Order seems to have been obtained or applied for at any hearing which Cohen knew about or was invited to attend.

Worse still – and in a further sign that Mueller knew perfectly well that what he was doing was wrong – instead of carrying out the raid with his own people he seems to have carried it out in a hole-in-a-corner way by getting a local District Attorney’s Office to do it for him.

Why then did Mueller take this extraordinary, indeed outrageous, step?

My guess is that he has now exhausted all other sources of information, and is close to giving up on the collusion allegations which he is supposed to be investigating.

Here is what Byron York, who has been following the Russiagate story closely, and who has far better sources of information about it than me, has to say about the point which the Mueller investigation before the Cohen raid had reached

Again, it is important to note how little we know about what Mueller is doing. For all the public knows, a big collusion indictment could be coming tomorrow. But it is also important to note what we do know. And we do know who Mueller has charged, and with what, after an FBI investigation that began in July 2016 and a special counsel probe that began in May 2017. And so far, there have been no charges — not against Manafort or Gates, not against Michael Flynn, not against George Papadopoulos, or others — involving alleged collusion.

The Mueller investigation is marching on, and in the case of Cohen, giving birth to new farm-team investigations, but so far at least, the story has not been about collusion.

I may be wrong but the Cohen raid looks to me like the action of a Special Counsel who is becoming increasingly desperate as the evidence of the collusion he is supposed to be investigating stubbornly refuses to appear.

In an effort to keep his investigation alive he is therefore expanding it into other matters which are ever more remote from its original purpose, and is taking steps which are ever more extreme.  The fact that he has now intentionally violated client-attorney privilege shows just how desperate he has become.

At the time of Mueller’s appointment I was prepared to give him the benefit of the doubt.  No longer.  Donald Trump is absolutely right when he says Mueller’s investigation is a witch-hunt.

It is now well over time for this investigation – which has now gone completely off the rails – to be brought to a stop, and since there is no possibility of Mueller himself resigning, I think following his latest transgression he should now be sacked.

Not only is the way Mueller is conducting the investigation becoming what looks to me to be frankly an open challenge and threat to the rule of law in the US, but the extraordinary stress his actions must be causing Donald Trump may well be a contributory factor to the erratic and dangerous statements Donald Trump has been making about Syria.

Neither the US nor the world can afford this situation any longer, and the time has come to bring this sordid chapter to a close.

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