DAVID GREENE, HOST:
When FBI agents raided the office of President Donald Trump's personal lawyer, Michael Cohen, the president called it a break-in and said this was disgraceful. Now, Michael Cohen, on the other hand, told CNN yesterday that the agents were courteous and respectful. That difference could be a sign that the two men are in very different, maybe opposing, legal realities. And we have Ken White on the line with us. He's a former federal prosecutor who now works as a criminal defense attorney. Mr. White, good morning.
KEN WHITE: Good morning.
GREENE: Let's talk this through. I mean, he calls it a break-in of his attorney's office, but this was done legally, right? Isn't there a pretty high bar for getting approval to do this kind of raid?
WHITE: Very much so. The Department of Justice has very stringent requirements before agents can raid a attorney's office because the attorney-client privilege concerns. So this couldn't be something where just Robert Mueller or his office are going rogue. This has to be something where the highest levels of the U.S. Attorney's Office in New York approved it and someone in the Department of Justice approved it.
GREENE: There was actually a process that had to happen. Well, let me ask you about attorney-client privilege because the president wrote on Twitter yesterday after this that, quote, "attorney-client privilege is dead." I mean, could this have violated that privilege and the president's privacy in some way?
WHITE: Well, certainly - typically, agents aren't supposed to seize communications between attorneys and clients. But there are two things going on here. One is that there are procedures for a situation like this to separate out what's sometimes called a clean team and a dirty team where the dirty team reviews the documents and sees which ones are privileged and keeps those away from the clean team. The other thing that's most likely going on is that the prosecutors believe they have a theory under which these documents are not going to be privileged, that there's some exception to the attorney-client privilege.
GREENE: When is that exception exist? Like, when is there an exception to attorney-client privilege?
WHITE: Well, one exception is called the crime fraud exception, and the idea is basically this - when you go to an attorney for the purposes of committing a crime or a fraud, that communication is not privileged. And special counsel Mueller has already used that theory once. He got a court to rule that communications between Paul Manafort and his attorney were not privileged under that. So the fact that they went in with a full team and deliberately went after attorney-client communications suggest strongly to me that they think that they can get the crime fraud or some other exception to apply because otherwise they wouldn't put in the resources. There's no point in seizing documents you're not going to be able to use.
GREENE: Well, this all sounds potentially perilous for, you know, Michael Cohen's clients, one of whom is the president. And prosecutors were reportedly looking for documents about payments to Stormy Daniels and Karen McDougal, both of whom say they had affairs with the president years ago. Why would they be interested in those documents? And is there a legal threat to the president here based on what they might find?
WHITE: Certainly. It's - you know, it's - usually it's not the underlying act. It's the cover-up. And here, every indication is that they're looking for violations of campaign finance law, bank fraud, money laundering, all the things that could flow from a effort to hide the source of and hide the payment of money to people for silence. So, you know, the affair is not a federal criminal violation. Even paying someone to be quiet about the affair is not a criminal violation. Where the violation might come from is the effort to conceal the source of the funds used pay for silence and to conceal the act of payment.
GREENE: Why would Mueller refer this to the federal - the U.S. Attorney's Office in New York and not pursue it himself?
WHITE: I think he thinks it did not directly arise from the Russia investigation and that's his brief - the Russia investigation and things directly arising from it.
GREENE: All right. Ken White is a former federal prosecutor and a criminal defense attorney at Brown White & Osborn LLP, who has been writing about the president's legal situation at this point. We really appreciate your time this morning.
WHITE: Thank you, David. Transcript provided by NPR, Copyright NPR.