Imagine the panic that has set in at the White House as it dawns on the republican President Donald Trump and his team, that they have no clue what could have been swept up by the 4/9/18 FBI raid that was supervised and conducted out of the Southern District of New York Judicial offices, on the president’s personal attorney Michael Cohen’s office, house and hotel room. This FBI raid was based on a “no knock” warrant with the listed charges of possible campaign election laws violations, bank and wire fraud.
The transfer for the supervision of the investigation into Michael Cohen’s business practices to the Southern District of New York Manhattan offices was approved by the Deputy Acting Attorney General Rod Rosenstein based on a referral by the FBI’s Special Counsel Robert Mueller III who is leading the Trump-Russia probe.
As per the 4/9/18 Slate report, “This raid involved not only the (NY) U.S. attorney’s office, but also a federal judge or magistrate judge signing off on the search warrant on the president’s lawyer after finding probable cause of criminal acts. That’s a big deal. A magistrate is not a federal judge, but they are appointed by federal judges, and they are not going to mess around in such a high-profile case. The prosecutors had to show not only probable cause of a crime, but they probably also had to persuade the magistrate that attorney-client privilege did not protect against the raid. Prosecutors likely had to convince the magistrate that at least some of the evidence would fit the crime-fraud exception to the privilege, and that bar is usually set very high. In such cases, it is important to have a separate team of investigators examine the evidence to separate protected communication from unprotected, which is another reason to involve the U.S. attorney, because the office is probably better able to provide two separate teams to honor the attorney-client privilege.”
It just so happens that the president’s personal attorney Michael Cohen is a resident of New York City where a significant portion of his businesses are located. Some of the criminal activity that Mr. Cohen maybe guilty of, could fall under the jurisdiction of the state courts where the presidential pardon has no reach. And yes, the federal and state courts could coordinate the efforts of their judicial officials.
The gentleman Geoffrey Bremen who heads the Southern District Office of NY is the man that President Trump personally interviewed and appointed for this position. Mr. Bremen has very appropriately recused himself from participating in the office’s investigation into Mr. Cohen’s potential criminal business activities but his hand picked second in command, Robert S. Khuzami, another life-long republican has taken over this role.
As per the 4/10/18 NewsDay report, “Berman was a campaign donor to Trump, a former law partner of Rudy Giuliani and a close friend of former New Jersey Gov. Chris Christie. Attorney General Jeff Sessions named Berman interim U.S. attorney, although Trump took the unusual step of personally interviewing him for the job.”
“There was every indication Trump would soon formally nominate Berman for the post, which needs Senate confirmation. That hasn’t happened because Trump has been unable to reach an agreement with Sens. Charles Schumer and Kirsten Gillibrand on the top prosecutors in the Southern District and for the Eastern District for Long Island, where Richard Donoghue holds the interim spot, as well as on a nominee for the vacancy on the prestigious Second Circuit. Without a deal, the New York senators could stall confirmations indefinitely.”
An interim designation, however, lasts only 120 days, or until the Senate confirms a nominee. Berman and Donoghue took office on Jan. 5, but with the White House in turmoil and the Mueller probe at full tilt, it’s now more unlikely than ever that Trump will make any nominations, never mind the Senate confirming nominees by the deadline of May 5.
On April 13, 2018, Jane Coaston of VOX penned the following report, “Trump could pardon Michael Cohen- but it might not save him”
State and federal law are different — and that might matter for Trump’s personal attorney.
“Pardons only work for federal crimes, not state crimes”
“First, a quick primer on presidential pardons. Article II, Section 2, Clause 1 of the Constitution reads in part: “[The president] shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” That gives the president of the United States the power to pardon people convicted of federal crimes through “executive clemency.” So Trump absolutely could pardon any of his associates accused, charged, or convicted of a federal crime, including Cohen.”
“State and federal crimes are different. A state crime, which might include robbery, burglary, or aggravated assault, breaks state law (most crimes committed are state crimes). Federal crimes, in comparison, are ones that violate US federal legislation, and are prosecuted by a US attorney. Examples of federal crimes include mail fraud or organized crime. But some crimes violate state and federal law — for example, someone can commit a murder (state crime) that also violates federal hate crimes law (federal crime).”
“In the Cohen case, it appears that he’s currently under investigation for violations of federal law — specifically, bank fraud, wire fraud, and campaign finance violations. But bank fraud is also a state crime, meaning that Cohen could be prosecuted on that charge by a New York district attorney, though it’s not currently clear what the theory behind the bank fraud allegations is.”
“(While the Constitution prohibits double jeopardy, or prosecuting someone twice for the same crime, there is nothing stopping state and federal agencies from bringing similar criminal charges against someone based on the same criminal act — the “separate sovereigns” doctrine.)”
“I asked Keith Whittington, a politics professor at Princeton University, whether Cohen could be pardoned by President Trump for any federal charges but still brought to trial on state charges.”
“It could easily happen if there are several different actions that were legally problematic,” Whittington told me, “but it could also happen even if the same action (or related set of actions) violated both federal and state law. Just to take a high-profile, but very different, case — Dylann Roof was charged with both federal and state crimes resulting from his shootings at the Emanuel African Methodist Episcopal Church in Charleston.”
Michael Cohen (C), U.S. President Donald Trump’s personal attorney, chats with friends near the Loews Regency hotel on Park Ave on April 13, 2018 in NYC while his attorneys were in court filing for a “Temporary Restraining Order,” on evidence collected due to FBI raids on his home, office and hotel room. (Photo by Yana Paskova/Getty Images)
“Judith Miller, an associate professor of law at the University of Chicago Law School, also referenced the Roof case when we spoke, telling me that Roof was convicted on federal hate crimes charges in federal court and sentenced to death, and pleaded guilty to murder charges in South Carolina state court, where he was sentenced to multiple life sentences.”
“All the charges arose out of the same events, but both South Carolina and the federal government prosecuted him,” she said. “The charges weren’t brought as a mix of charges in one case, though. The state filed its charges, and the federal government filed separate charges.”
“Only federal prosecutors can charge defendants with federal crimes, and only state prosecutors can charge defendants with state crimes. Typically, when someone is charged with crimes by both the federal government and state prosecutors, the federal government will usually stand down and let the state government try their case first, said Barbara McQuade, a professor at the University of Michigan Law School and former US attorney for the Eastern District of Michigan.”
“One example is the trials of four Los Angeles police officers who beat taxi driver Rodney King while arresting him on March 3, 1991. After a Los Angeles jury acquitted three of the four officers on charges of use of excessive forces, the Department of Justice indicted the four officers for violating King’s civil rights. That trial resulted in two convictions.”
Cohen could face several New York-based charges — and there’s nothing Trump could do about it
“The investigations into Cohen are ongoing. But Sonja Starr, also of the University of Michigan Law School, said that the investigators are looking into several issues that would be prosecuted at the state level rather than the federal level.”
“The investigations could lead to charges of bank fraud, money laundering, and threats of violence — all state crimes. If Cohen is charged with violating campaign finance laws in his payment to Stormy Daniels, on the other hand, that would be a federal crime.”
“The fact pattern in this case certainly suggests that various state charges are possible,” she said, “in New York [in addition to] any other states where criminal conduct took place.”
“In short, Michael Cohen’s legal problems go way beyond Robert Mueller’s investigation.”