
President Donald Trump is responding to the raid on the office of his attorney, Michael Cohen, by making arguments reminiscent of another Republican president with whom he probably doesn't want to be associated — President Richard Nixon.
This article was originally published at Salon
On an immediate level, this may seem like a simple case of Trump and Cohen grasping at straws to conceal whatever they feel might be legally damaging to them in Cohen's documents. It is unlikely that the presiding judge will allow them to effectively transform the search warrant into a subpoena — which is what the pair are essentially requesting, when they ask to be able to go through the documents to remove anything that might be protected by attorney/client privilege.
But there is an aspect of this that is positively Nixonian in nature. When Nixon was ordered by special prosecutor Archibald Cox to turn over tapes of secret recordings he had made of White House conversations, the president refused. When the U.S. Court of Appeals ruled that Nixon had to comply with Cox's request, the president attempted to craft a deal with Attorney General Elliot Richardson that would allow him to review what was in the tapes first, summarize their contents to a federal judge and then allow Sen. John Stennis (who, despite being a Democrat from Mississippi, was not unsympathetic to Nixon) to listen to the recordings and independently verify that Nixon had not left anything important out of them.
The Nixon camp had claimed this was to protect matters of interest to national security. But although Richardson agreed to the compromise, Cox did not, and Nixon ordered him fired. What followed was the "Saturday night massacre": Richardson resigned instead of following through on the unconstitutional order; Deputy Attorney General William Ruckelshaus likewise resigned instead of doing so, so the job of firing Cox was ultimately left to U. S. Solicitor General Robert Bork — whose actions served as the argument against his confirmation to the Supreme Court 14 years later.
Which brings us to 2018. Both Nixon and Trump have said they should have the right to review documents seized in order to investigate potential criminal activity, and cited legal rights that may not apply to their situations. For Nixon, it was executive privilege; for Trump and Cohen, it is attorney-client privilege. The courts found that Nixon's argument was invalid, and they're now looking at Trump's claims.
When Nixon was invoking his privilege, the former president was trying to hide something — a so-called "smoking gun" in which Nixon was heard asking his officials to try to convince the CIA to request that the FBI stop investigating the Watergate burglary on the grounds of national security (that just happened to be the same logic Nixon used to try to keep the tapes from Cox).
Special prosecutor Leon Jaworski concluded that, by doing this, Nixon had entered into a criminal conspiracy to obstruct justice.
We don't know what Michael Cohen has. Maybe the information could pertain to the payment made to porn star Stormy Daniels to cover up her alleged affair with Trump — or to other women with whom the president may have been romantically involved. It also could pertain to the ongoing probe into possible collusion between the Trump campaign and Russian government officials. Or both.
Nixon was convinced that the investigation into his actions was politically motivated — or, at the very least, that the accusation of partisan bias was enough for Republicans to discredit it. Just as Nixon claimed that the Watergate scandal had been cooked up by his political enemies, Cohen's court filing argued that "the appointment of a Special Master will protect the integrity of the Government's investigation from the toxic partisan politics of the day and attacks on the impartiality of the Justice Department and USAO."
A legal filing from the firm McDermott, Will & Emery also mentioned that "as the Court is surely aware, there is a growing public debate about whether criminal and congressional investigations by the government are being undertaken impartially, free of any political bias or partisan motivation."
One thing is clear, though. Presidents like Nixon and Trump don't ask to cherry pick what the people investigating them can see because they fear it will make themselves look too good. The fact that this request is even being made strongly suggests that Trump and Cohen know they will find themselves in big trouble. The only question is what the trouble will be and why.
Meanwhile, a pair of legal experts sounded off on the Trump's lawyers' demands to review Cohen's computers, and explained just why Trump's request was so odd.
First there was Professor Orin Kerr of the University of Southern California's Gould School of Law.
1/ In a new legal filing tonight, President Trump's lawyers argue that they should be able to review Michael Cohen'… https://t.co/Dvhenk9wu4— Orin Kerr (@Orin Kerr) 1523843131.0
2/ Cohen made a similar argument last week, and Trump has now intervened. I'm not aware of a client ever being able… https://t.co/Z9ibILHggA— Orin Kerr (@Orin Kerr) 1523843507.0
3/ will say that those e-mails are privileged. Trump in effect wants the warrant to be executed like a subpoena to… https://t.co/Jdohvl3qQD— Orin Kerr (@Orin Kerr) 1523843757.0
4/ argument is that as the client, he is uniquely situated to understand the documents and uniquely incentivized to… https://t.co/1tIrWmzoPA— Orin Kerr (@Orin Kerr) 1523843900.0
5/ Stewart case, in which (as he notes on p3) the defendant was given a copy of the the files so she could also rev… https://t.co/a6YhLwGpnG— Orin Kerr (@Orin Kerr) 1523844344.0
6/ the govt and defense getting a copy so they could make objections to the special master's recommendations that w… https://t.co/XegHjcAKB4— Orin Kerr (@Orin Kerr) 1523844462.0
7/ master's recommendations, and ultimately, on what the presiding judge thinks is correct. Anyway, that's my quic… https://t.co/Oey15ngnde— Orin Kerr (@Orin Kerr) 1523844599.0
8/ Also note that Trump is not claiming that his legal team will get the last word. He proposes that his team gets… https://t.co/fEhMfclFOU— Orin Kerr (@Orin Kerr) 1523845167.0
10/ One additional thought. It is supremely weird that this filing came not from some random suspect in a random… https://t.co/m1M3FpK2mf— Orin Kerr (@Orin Kerr) 1523847747.0
Then there was former federal prosecutor and current candidate for Illinois Attorney General Renato Mariotti.
THREAD: What should we make of the filing by Trump’s lawyers demanding that Trump be permitted to review the docume… https://t.co/6ntH0VyI7w— Renato Mariotti (@Renato Mariotti) 1523843293.0
1/ The letter linked above was sent by Trump’s lawyers to the judge overseeing Cohen’s challenge to the prosecution… https://t.co/vA9oRwfiPO— Renato Mariotti (@Renato Mariotti) 1523843524.0
2/ As a starting point, Cohen’s challenge to the search warrants is extraordinary, and Trump’s intervention into Co… https://t.co/yEjP2qjmi6— Renato Mariotti (@Renato Mariotti) 1523843685.0
3/ Typically when the government executes a search warrant, the government uses a “taint team”—a group of lawyers w… https://t.co/dshyxbVpdk— Renato Mariotti (@Renato Mariotti) 1523844014.0
4/ Although searches of lawyer’s offices are unusual, there are established Justice Department procedures for handl… https://t.co/EnUEPS4yOm— Renato Mariotti (@Renato Mariotti) 1523844228.0
5/ As you can imagine, this was a non-starter for the prosecutors. The reason prosecutors obtained the search warra… https://t.co/UyoZIRHapa— Renato Mariotti (@Renato Mariotti) 1523844364.0
6/ If Cohen had the ability to go through the documents and remove documents he didn’t want the prosecution to see,… https://t.co/d6jRJbMkox— Renato Mariotti (@Renato Mariotti) 1523844474.0
7/ The typical way that prosecutors obtain records in white collar cases is through subpoena, not search warrants.… https://t.co/MYjg6wKfkB— Renato Mariotti (@Renato Mariotti) 1523844586.0
8/ Prosecutors typically use that process despite the risk because it’s more efficient and cost-effective for the p… https://t.co/KtBPcu0RY5— Renato Mariotti (@Renato Mariotti) 1523844702.0
9/ That’s why Cohen’s request was so incredible—he was essentially asking the court to transform the search warrant… https://t.co/iokHZzHLvk— Renato Mariotti (@Renato Mariotti) 1523844821.0