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How Mueller could use evidence from the FBI’s raid on Michael Cohen

The FBI raid on the office and residence of President Trump's personal lawyer is an extraordinary and unusual step that would require high-level authorization at the Justice Department and the burden of evidence showing probable cause. Judy Woodruff gets analysis from attorney Mark Zaid and former federal prosecutor Paul Butler on what it means for the Russia investigation.

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  • Judy Woodruff:

    Well, to answer some of the legal questions involved in this raid on the office and home of the president's lawyer, I spoke a short time ago to Paul Butler. He's a former federal prosecutor and law professor at Georgetown University. And to Mark Zaid. He's a Washington, D.C. attorney who specializes in government investigations.

    We started with Mr. Butler on how this kind of raid is extraordinary.

  • Paul Butler:

    Judy, barging into a lawyer's office and his residence, looking through all of his papers and e-mail and documents relevant to his representation of a client is among the most sensitive things a federal prosecutor can do.

    And for that reason, the Department of Justice has very high levels of authority for who has to approve it. It has to go through an assistant attorney general. In this case, reportedly, it was the deputy attorney general, Rod Rosenstein. And then there has to be a showing made to a federal judge that there is probable cause to think there is evidence of a crime that will be uncovered where FBI wants to look.

    It's extraordinary. In years of federal practice as a prosecutor, I never did this. You rarely see it in a case, because it really impinges the heart of our adversarial system. It's almost like cheating. There are very serious concerns about attorney-client privilege that have to be respected.

  • Judy Woodruff:

    Mark Zaid, why is it so different? What is so special about attorney-client privilege?

  • Mark Zaid:

    Well, it is one of the sacrosanct privileges, rabbi-priest privilege, marital privilege, attorney-client privilege.

    The fact is that we as attorneys know a lot of things that our clients do, good and bad, and in order to be able to properly defend them under our Constitution, we need to be able to keep that away from the prying eyes of the government.

  • Judy Woodruff:

    So, Paul Butler, does this mean the prosecutor would have had to present to the Justice Department, present to the judge evidence, whatever evidence there was, that something was wrong, that either a crime was committed or could be about to be committed?

  • Paul Butler:

    Yes.

    So, reportedly, they have said that Mr. Cohen is a subject of the grand jury investigation, which means that he has not formally been charged with a crime, but he's under serious investigation. And so they'd have to make that showing.

    And then they have to establish how they're protecting attorney-client privilege. And usually it's done by one set of investigators and prosecutors who are called the tank team or dirty team. So they actually conduct the investigation. They go in, they seize the documents, and then they review them.

    They remove the privileged documents, and then they turn it over to a clean team. That's a separate set of investigators who actually pursue the case.

  • Judy Woodruff:

    But just to back just up a moment, Mark Zaid, Michael Cohen and his attorney have been saying, well, we have been cooperating fully with the investigation, with the Mueller investigation, so we don't understand why they would need to do this.

  • Mark Zaid:

    Yes, you would think, and I'm sure to the public that resonates a great deal, but I can tell you from practice it really doesn't make a difference.

    I had a case involving a CIA case officer a couple years ago, and we were fully cooperating with the FBI, coming in for every meeting they requested, telling them and answering every question they asked. And, lo and behold, they show with a no-knock warrant, meaning they just barge into the house at 6:30 a.m. in the morning.

    So this is common. Sometimes, it comes up because there are concerns that there might be destruction of evidence, that it might be occurring, but there could be a number of reasons why. But that by itself is not unusual at all.

  • Judy Woodruff:

    Paul Butler, there is reporting that the special counsel, Robert Mueller, referred this case, well, and we read this, to the attorney, the prosecutor for the Southern District of New York.

    What does this say, do you think, about the Mueller investigation, what it is or is not pursuing itself?

  • Paul Butler:

    So, what's been reported is that special counsel Mueller uncovered evidence that Michael Cohen might be involved in criminal activity

    And he went to Rod Rosenstein, and apparently Rod Rosenstein's decision was to refer it to the New York federal prosecutor. So it may have been that they thought it was outside of the purview of the special counsel investigation, which is about collusion and obstruction of justice.

    Or, on the other hand they may just be going to New York for this clean team, so it may be that New York reviews the documents, removes all of the privileged documents, and then actually turn over the non-privileged documents back to Mueller. We just don't know.

    Again, special counsel Mueller seems to be doing a very good job at avoiding leaks, so we really have limited information about this. It may be about bank fraud. It may be about Stormy Daniels. We will have to wait and see.

  • Judy Woodruff:

    Yes.

    Mark Zaid, what would you add to that in terms of what this may or may not say about the Mueller investigation, understanding there have been very few leaks?

  • Mark Zaid:

    There is more than just the Mueller investigation that is touching upon parallel issues involving Russia, for example.

    So, the FBI is conducting a number of investigations that are parallel to what Mueller is doing. So it is possible, as was said, that the — whatever was going on with Michael Cohen might fall outside, so it was sent to the Southern District of New York.

    I think one of the things that both Michael Cohen and the president perhaps have to be concerned about might not be what actually the FBI was searching for specifically, as we will see one day in the affidavit that was used before the judge, but what they actually might find, because, very often, if they can separate the privilege issue through the dirty team and give it to the clean teams, there may very well be evidence of other crimes that the FBI wasn't even aware was going on.

    And, oftentimes, that can be the worst and most dangerous part for someone who has their house or office raided.

  • Judy Woodruff:

    Paul Butler, your…

  • Paul Butler:

    Judy, if I could…

  • Judy Woodruff:

    Go ahead.

  • Paul Butler:

    Yes, I'm nodding, because that could be a relationship between the Michael Cohen investigation and Robert Mueller's investigation.

    We have seen that special counsel Robert Mueller, one of his tactics is to get incriminating information about somebody who might be a witness against President Trump or someone higher up in his campaign, get that person to plead guilty, and essentially flip that person.

    So if the investigation uncovers substantial evidence of wrongdoing by Michael Cohen, again, he reportedly is President Trump's fix-it. He didn't take the loyalty pledge. So he may have lots of information about President Trump that special counsel Mueller would like to know.

    And prosecutors share information all the time. So even if there is one prosecution or investigation of Cohen and another about collusion that is operated by Mueller, they could share information and possibly use the information about Cohen to flip, to get him to turn on his client, President Trump.

  • Judy Woodruff:

    So many strands here to follow.

    Gentlemen, thank you both very much. Paul Butler, Mark Zaid, we thank you.

  • Mark Zaid:

    Thank you.

  • Paul Butler:

    Great to be here.

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