‘Monday Is Going To Be A Bad Day’: Rosenstein Gave Sessions A Heads Up On 2018 Cohen Raid

An in-depth look at the events leading up to the FBI's pre-dawn raid on Michael Cohen's hotel, office and apartment in spring 2018.
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January 14, 2020 6:00 a.m.

This article is part of TPM Cafe, TPM’s home for opinion and news analysis. The following is an excerpt from “The Fixers: The Bottom-Feeders, Crooked Lawyers, Gossipmongers and Porn Stars Who Created the 45th President” (Penguin Random House, on sale Jan. 14, 2020).

In the predawn hours of Monday, April 9, FBI agents filtered into a side entrance of the Loews Regency Hotel on Manhattan’s Park Avenue and took the service elevator to the seventeenth floor. They knocked on the door to room 1728. When a surprised Michael Cohen answered, an agent asked if he had any firearms. Cohen led the agents to a drawer where he kept his gun, which they confiscated. The agents furnished a warrant to seize financial records, evidence related to the payments to Stormy Daniels and Karen McDougal, and information about his taxi business and loans from banks and credit unions. Cohen’s wife, Laura, sat on a bed as the agents carted away materials from Cohen’s hotel suite, where he was staying while his apartment underwent renovations after a flood.

At roughly the same time, another FBI team appeared on the twenty-third floor of 30 Rockefeller Plaza. They entered Cohen’s office at the law firm Squire Patton Boggs and boxed up his files, placing them in a truck. Agents also searched Cohen’s Park Avenue apartment and a safe-deposit box at TD Bank.

The haul was considerable: computers, smartphones, and tablets belonging to Cohen’s whole family, cartons of documents, even the contents of his shredder — millions of items in all.

In an affidavit in support of search warrants, an FBI agent had told U.S. Magistrate Judge Henry Pitman that the government expected to find evidence of bank fraud, illegal campaign contributions, and other crimes in Cohen’s possession. The judge had signed the search warrants at 7:54 p.m. the day before the raids.

As the searches were under way, agents arrived at the Greenwich, Connecticut, home of David Pecker and at the Manhattan apartment building of Pecker’s top editor, Dylan Howard. The FBI had subpoenas for both men and search warrants authorizing the immediate seizure of their cellphones. Mr. Pecker, who was at the dentist when the agents showed up, returned home and turned over his device.

The criminal investigation of Michael Cohen had spilled into the open.

The FBI searches of Cohen’s home, hotel, and office represented an extraordinary use of government investigatory power. Federal agents rarely raid attorneys — let alone the personal lawyer for the President. Law offices make for hazardous targets. They hold scads of communications between attorneys and clients that the law protects from discovery. Federal investigators risk tainting their cases if they peek at emails or documents covered by the attorney-client privilege. Judges have thrown out criminal charges for less.

Better to first try a less intrusive investigative tool than a search warrant to gather evidence from an attorney, like a subpoena, which puts the onus on the recipient to turn over files and challenge any potential encroachment on client protections, if need be. That’s what the U.S. Department of Justice’s manual for federal prosecutors advises, anyway, “unless such efforts could compromise the criminal investigation or prosecution, or could result in the obstruction or destruction of evidence.”

In this case, FBI agents and federal prosecutors in Manhattan believed that Cohen was liable to withhold or destroy files if they simply sent him a subpoena for the evidence they sought. They’d been investigating the attorney since February, after inheriting the case from special counsel Robert Mueller. Mueller’s team had looked into the foreign funds flowing into Cohen’s Essential Consultants account but found no nexus to the Russian influence scheme. The special counsel’s office had unearthed evidence of other crimes, however, while picking through Cohen’s emails and financial records. They suspected he’d lied to banks while trying to get out from under $22 million in debt he owed on loans he’d taken out against his taxi medallions.

The medallions, once a safe investment, had lost much of their value in the face of competition from ride-sharing companies like Uber. When Cohen refinanced his taxi medallion loans in 2014, he’d reported a net worth of more than $77 million. Three years later, he complained that he could no longer keep up with the payments on the loans, telling Sterling National Bank and Melrose Credit Union he had a net worth of negative $12 million. But he’d neglected to disclose hundreds of thousands of dollars pouring into accounts he’d opened for Essential Consultants and his law practice, and millions more in cash sitting in other banks, investigators discovered.

The bank fraud investigation was beyond Mueller’s Russia-centric remit, so the special counsel had outsourced it to the U.S. Attorney’s Office for the Southern District of New York. The Journal’s stories on Cohen’s payment to Daniels and American Media’s deal with Karen McDougal prompted New York investigators to expand their probe to include potential violations of campaign-finance laws.

In legal circles, the Southern District is sometimes called the “sovereign district,” a tongue-in cheek nod to the office’s independence and high self-regard. It is one of ninety-four field offices for federal prosecutors across the United States and its territories, all of them part of the massive Department of Justice, but the Southern District has a reputation for conducting itself as if it’s the only game in town.

"
How would department officials under siege by the President react to a request by New York prosecutors to execute search warrants on Trump’s personal attorney? "

Southern District prosecutors work in a federal building at St. Andrew’s Plaza in downtown Manhattan, near City Hall. The office is a premier assignment. Top law firms and in-house legal departments at large public companies court assistant U.S. attorneys from the Southern District, paying them many times their government salary to switch sides, given the office’s reputation for attracting the best of the best.

But the office’s reputation and independence have limits. The United States Attorneys’ Manual requires federal prosecutors in the field to consult with their overseers in Washington before asking a federal judge to sign a warrant to search an attorney’s office. The agency’s top leaders and policymakers reside in the Justice Department’s headquarters, in Washington, D.C., known colloquially as “Main Justice.”

Involving Main Justice is no small matter. Trump had shown no respect for the independence of the Justice Department. He’d already asked for and received a resignation letter from his attorney general, only to change his mind and pocket the letter. (“You were supposed to protect me,” Trump had complained to Sessions after Mueller’s appointment.) And he’d directed his White House counsel, Don McGahn, to pressure the number-two official at the Justice Department to fire Mueller. McGahn had ignored the order. But who knew what would happen if the President asked another White House official to do his dirty work?

On Twitter and elsewhere, Trump’s disdain for the Justice Department and the FBI was on public display almost daily. Mueller, a Republican who had served under presidents from both parties, led a team of “hardened Democrats” motivated by politics to dislodge the President through undemocratic means, Trump said. The FBI, too, was guilty of attempting a bloodless coup. Sessions was weak. Trump said he wished he’d picked someone else to lead the department.

How would department officials under siege by the President react to a request by New York prosecutors to execute search warrants on Trump’s personal attorney? Rod Rosenstein, the Justice Department’s number-two official and its day-to-day manager, had been telling the agency rank and file that Trump’s barbs were a test for them. The President had a First Amendment right to express his views, but his tweets and the insults he transmitted through the press had no bearing on their operating instructions. “Ignore partisan considerations,” Rosenstein had been saying.

Late in the week before the FBI raids, the search warrant affidavit made its way from Robert Khuzami, the deputy U.S. attorney in the Southern District, to Rosenstein’s office, one rung below the attorney general. Khuzami was overseeing the Cohen case for the same reason Rosenstein was in charge of the Mueller probe. Their immediate bosses, U.S. Attorney Geoffrey Berman and Attorney General Jeff Sessions, had recused themselves from matters involving Trump. Berman, a former law partner of Rudy Giuliani, had been appointed on an interim basis by Sessions in January and was awaiting a formal nomination by Trump as his 120-day term neared expiration. (Berman would soon be confirmed by the chief judge in Manhattan federal court, in the absence of a presidential nomination.)

Justice Department officials in Washington didn’t need to approve the searches, not technically, but they had to be consulted to make sure procedures were followed. Rosenstein tasked senior prosecutors in his office to look at the document, and he personally reviewed it. Everyone agreed that it satisfied the law and agency policy.

The green light from Main Justice was a signal to the federal agents and prosecutors in New York that the Justice Department would support their investigation, wherever it led.

Rosenstein gave his boss, Jeff Sessions, a heads-up that federal agents were planning to conduct the searches at the beginning of the coming week, if a federal judge approved them. Sessions, perpetually on the brink of resigning or getting fired, needed to know that the Justice Department was about to make a move guaranteed to provoke Trump.

“Monday is going to be a bad day,” Rosenstein told the attorney general.

By coincidence, Rosenstein and FBI General Counsel Dana Boente were scheduled to speak with Trump at the White House on the day of the Cohen raids. The President had called the meeting after hearing complaints from Republicans in Congress that the FBI was slow-walking their requests for documents related to the investigation of Hillary Clinton’s email server.

That was a small thing next to armed FBI agents carting away evidence from the office, home, and hotel room of Trump’s personal attorney. We didn’t know what, if anything, Trump said to Rosenstein about the searches at that White House meeting. But we knew he was angry.

“I just heard that they broke into the office of one of my personal attorneys, a good man, and it’s a disgraceful situation. It’s a total witch hunt,” he told reporters after the raids.

 


Joe Palazzolo and Michael Rothfeld led a team at The Wall Street Journal that won the 2019 Pulitzer Prize for National Reporting for a series of stories that revealed the hush-money payments to Stormy Daniels and Karen McDougal, and President Trump’s direct participation in both.

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