TARGET-RICH ENVIRONMENT:

I will put this as bluntly as I know how: There is no way that the U.S. Attorney's Office for the Southern District of New York would have sought or executed a search warrant against the president's lawyer without overpowering evidence to support the action. The legal standard for such a search requires only probable cause that criminal activity is taking place. Under normal circumstances, which these are not, the prudential and policy factors counseling against such an action would be powerful.

For starters, the Justice Department is institutionally cautious about searches involving attorneys acting in their role as attorneys. As Paul Rosenzweig noted, "the U.S. Attorney's Manual has an entire section that limits how and when the offices of an attorney may be searched. Realizing full well that such searches are in derogation of the value of the [attorney-client] privilege, the manual requires high-level approvals, the exhaustion of other investigative avenues, and specifies procedures that are to be followed to limit the intrusion on privileged documents." Moreover, the Justice Department would have been additionally cautious about seeking any warrant against this particular lawyer--precisely because doing so makes clear that a ring is closing around the president. Going after a prominent person's lawyer for matters related to his representation of the client is, after all, an aggressive act toward the client, not just toward the lawyer. And Trump is, as he puts it, a counterpuncher.

This is the kind of step that would predictably elicit a reaction. The Justice Department simply would not take such an action lightly or without evidence that emphatically supports it. Add these prudential, legal and policy factors together and they cumulatively suggest that the evidence supporting the warrant application likely exceeds--probably by far--what is legally required.

Put another way, Cohen's situation, and thus Trump's situation, is grave.

This seriousness is not simply a function of the apparently advanced state of some of the evidence involved. The nature of the warrant shows that the investigation itself is spreading. According to the New York Times, "The F.B.I. agents who raided the office of President Trump's personal lawyer on Monday were looking for records about payments to two women who claim they had affairs with Mr. Trump, and information related to the publisher of The National Enquirer's role in silencing one of the women, several people briefed on the investigation said."

In short, this search warrant is apparently not about L'Affaire Russe. The FBI raided the office of the president's personal lawyer on a matter related to L'Affaire Stormy. That means that prosecutors were able to show probable cause of criminal activity connected to Cohen's representation of the president on matters far removed from Russian interference in the 2016 campaign, obstruction of justice or any of the other matters within Mueller's purview. Notably, this subject matter metastasis coincides with a bureaucratic metastasis as well. It was not, after all, Mueller who sought or received the warrant. As Rosenzweig notes:

Muller referred the matter to the Justice Department, where the investigation was assigned to the U.S. Attorney's Office for the Southern District of New York. That office (run by a Trump appointee) then procured the warrant--with the approval of a magistrate judge--and worked with the FBI to conduct the search. In this regard, the special counsel's actions, and the Justice Department referral are completely unlike the Starr investigation on which I worked many years ago. There, Attorney General Janet Reno kept expanding the Starr investigation into new areas--mostly, I think, as a matter of convenience. Here, the department seems intent on cabining the Mueller investigation to the scope it was originally initiated for--and to also be willing to spin off unrelated matters to the relevant local U.S. attorney's office.

This bureaucratic distribution of the investigation is actually a good thing. It will have the effect of diffusing responsibility for the investigations as they develop away from Mueller. One of the problems with Reno's decision to concentrate so many investigative matters in Starr's hands was that Starr became the locus of all things related to investigations of Bill Clinton. This proved damaging to Starr's credibility, as people were able to accuse him of being on a far-flung series of vendettas against Clinton. He was also accused of mission creep, and there was some truth to that charge. But Starr also suffered from the repeated assignments of unrelated matters to his office by Reno and the Justice Department.

Rosenstein, who worked for Starr, does not appear to be making the error of concentrating things in Mueller's hands. Bloomberg reports that Rosenstein made the decision to refer the Cohen raid to the Southern District of New York, rather than keeping it within Mueller's exclusive purview. Likewise, the Times reports that Rosenstein "personally signed off on Monday's F.B.I. decision to raid the office of Mr. Cohen." Rosenstein, in other words, chose to spread responsibility around, taking some of the heat of the president's wrath off of Mueller. This was the right move. But it also carried risks--specifically, the danger of making Rosenstein himself so central to the investigations that he becomes a target of the president's ire. The metastasis may protect Mueller, but it also may endanger Rosenstein.

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