David Cole is national legal director of the ACLU and legal correspondent for The Nation. His most recent book is Engines of Liberty: How Citizen Movements Succeed. This interview has been edited and condensed.
Jon Wiener: The FBI on Monday raided the office and home and hotel room of Trump’s private attorney, Michael Cohen. My understanding is that, in order to get a search warrant, they had to convince a federal magistrate that there was probable cause that the premises contained evidence that a crime had been committed, and that the only way to preserve that evidence was with a surprise raid, not by asking for it with a subpoena—because the person in question might destroy it. Is this correct?
David Cole: That’s correct. Not only that; when the government goes after files in an attorney’s office, that’s an extraordinary step. They don’t do that lightly. Their own internal procedures provide that they have to get very-high-level approval before they can even ask a judge to authorize them to conduct a search of an attorney’s offices. It has to be approved by the lead prosecutor in New York, the head of the office, the US attorney there—who was appointed by Donald Trump. It also has to be approved by an assistant attorney general, the number-two or -three person in the Justice Department—appointed by Donald Trump. Then they have to go to a judge and demonstrate probable cause to believe that there’s evidence of crime, and that they can’t get it through the ordinary means.
JW: So was this, as the president says, “an attack on our country,” or is it an example of the rule of law?
DC: It’s the latter.
JW: Working for the president doesn’t get you immunity if you’ve committed a crime.
DC: That’s right. If in fact there was not probable cause and the magistrate should not have issued the warrant, that issue can be litigated. But this is the way the law is supposed to work. It’s not an attack on our country; the president, by attacking the ordinary process of the rule of law when it applies to him, is the one who’s engaged in an attack.
JW: Trump also tweeted that, as a result of the raid, “attorney-client privilege is dead.”
DC: There’s a well established exception to the privilege, going back to the foundation of the privilege itself, called the crime-fraud exception. If you’re using your attorney to commit crime or to commit fraud, there’s no privilege. Also, the FBI has a whole set of procedures for examining attorney files, to ensure that they’re not invading other client’s privileges. We’ll see what the facts ultimately reveal, but there’s reason to believe that this lawyer violated the campaign finance laws by paying off Stormy Daniels, and may have violated other laws by getting someone to threaten Stormy Daniels’ child if she didn’t shut up about Trump. And it appears that there were other payoffs from this attorney that may have constituted illegal campaign contributions. If he’s engaging in criminal conduct on behalf of Trump, he can’t invoke the attorney client privilege to protect that.
JW: Trump talked on Monday about firing Robert Mueller. Do you think he will do that? And what do you think would happen if he did?
DC: Predicting what Donald Trump will do is a precarious business. But I think it’s only when his back is truly against the wall and Mueller’s likely to to bring him down anyway that he would actually fire Mueller. And at that point I think his administration is over. If you thought there were a lot of people out in the streets for the women’s march, just wait and see what happens if he fires Mueller. I think you’re going to see massive demonstrations that make the Women’s March look like the anemic crowds for Trump’s inauguration. Lindsey Graham, no knee-jerk liberal, has said it would be the end of his administration if Trump fires Mueller. He’s been talked out of it at least once by his White House counsel, who also apparently understands that it is an extremely high-risk and deeply problematic move. But of course you’ve got a Republican House and a Republican Senate; will they have the nerve to hold their President accountable? If they don’t, it will be the issue for the midterms—and you are likely to see unprecedented turnout. At the end of the day, I don’t think he’s going to be able to stop this investigation from running its course—one way or another.