04Michael CohenWithout doubt, when danger lurks and a person, or group, fails to recognize and properly respond to it, it is costly. Recently, I was driving on a heavily traveled road in Fayetteville. A little sports car was trailing me and got very close to my rear bumper. I immediately realized this was a dangerous situation. I moved ahead enough for him to pass me. He flew past. If I had not seen that car in my rearview mirror and taken preventative action, very likely, a collision would have been the result. This experience highlights the need to recognize and act in the face of danger.

The costly nature of failing to recognize and act in response to danger extends to every aspect of life. It seems there is an epidemic underway regarding failure to recognize danger. At least three causes for this condition in America should be considered. The first is that people are so busy struggling to support themselves and family that little or no attention is given to sensing danger. Another is that there can be so much anger, so much emotional baggage, that there is a blinding of one’s capacity to identify danger. Then, in a world of unbelievable selfishness, people look at conditions that might be dangerous but decide these conditions do not affect them and, consequently, give no attention to an otherwise dangerous situation.

The examples of how this failure to recognize danger happens and can prove costly are almost without limit. As I write this column, there is a developing situation that demonstrates all of what was addressed in the preceding paragraph. Reports on April 9 indicate that the FBI raided the office and hotel room of Michael Cohen. He is the personal lawyer of President Donald Trump. Various materials were taken for reasons that have not been publicly reported. The search resulted from a referralby Robert Mueller, special council to the U.S. Attorney’s Office for the Southern District of New York. This suggests Mueller discovered some possible breach of law that was not under his purview, but should be addressed. The raid was conducted under a search warrant obtained by the Manhattan federal prosecutors.

The first concern is that this was a search of an attorney’s office, which gave the FBI access to client information that clients had every reason to think was protected by attorney-client privilege. For this reason, the U.S. Attorneys’ Manual is clear in requiring defined steps and extreme care when dealing with a situation of this nature. Below are some segments from the section that addresses searches of attorneys’ records. To fully appreciate the importance of this issue, please read the full section at https://www.justice.gov/usam/usam-9-13000-obtaining-evidence#9-13.420:

“Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search.

“In order to avoid impinging on valid attorney client relationships, prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law. Consideration should be given to obtaining information from other sources or through the use of a subpoena, unless such efforts could compromise the criminal investigation or prosecution, or could result in the obstruction or destruction of evidence, or would otherwise be ineffective.

“Procedures should be designed to ensure that privileged materials are not improperly viewed, seized or retained during the course of the search. While the procedures to be followed should be tailored to the facts of each case and the requirements and judicial preferences and precedents of each district, in all cases a prosecutor must employ adequate precautions to ensure that the materials are reviewed for privilege claims and that any privileged documents are returned to the attorney from whom they were seized.”

Clearly, these segments reflect recognition of the possible detrimental consequences of searching anattorney’s records. With that in mind, consider how the search of Cohen’s records has proceeded. The searches took place. With his attorney, Cohen went to court and requested permission to have an independent third party, called a “special master,” review the materials that were removed. The aim would be to identify materials believed to be covered by attorney-client privilege. This review would take place before any review by the FBI.

Although government attorneys have not been specific regarding reasons for the searches, there is substantial reporting as to the reason. Olivia Messer and Kate Briquelet write the following in an article titled, “Judge Hands Defeat to Trump and Cohen Over FBI Raid: ‘You’ve Miscited the Law.’”

The article states, “Prosecutors reportedly sough tinformation about Cohen’s role in facilitating hushmoney payments to Trump’s alleged mistress, porn star Stormy Daniels, and his potential role infacilitating a payout to ex-Playmate Karen McDougalin the run-up to the 2016 election. Both women claim they had affairs with Trump and have sued to be released from their NDAs. The raids were ‘the result of a months-long investigation into Cohen’ and his ‘own business dealings,’ prosecutors said in a Friday filing.”

Beyond the searches, the court process resulted in the names of two Cohen clients being revealed. Every indication is that these clients had absolutely no involvement with the suspected offenses by Cohen that are being investigated. Those clients are Elliott Broidy, a Republican fundraiser, and Sean Hannity, a Fox Cable News show host. Hannity had requested that his name not be disclosed. Judge Kimba M. Wood, the United States District Court for the Southern District of New York, ordered Cohen’s attorney, Stephen Ryan, to disclose an unnamed client, who turned out to be Hannity.

As of April 20, reports are that Judge Wood announced she would, in late May, make a decision regarding a special master. That means materials taken in the Cohen searches will not be examined until June.

I hold that the picture painted here is one where: attorney-client privilege is jeopardized; an attorney’spractice is prematurely destroyed; the public is given reason to distrust claims of privacy protection when communicating with an attorney; people who had absolutely no involvement with the suspected wrong doing can have their identities exposed and face serious undesired consequences; the process for settling a matter of this nature seems to go on without end; and on goes the list of negatives. Without doubt, what is described here is dangerous for every American.

The scary, and quite sad, fact is that far too many Americans will disregard this danger for one or more of the reasons given in the second paragraph above. That is – they are so occupied with simply surviving, consumed by negative emotions, or focused on self to the point that this danger is disregarded because it is viewed as not applicableto them. In that category of negative emotions, the raging hatred that so many people have for PresidentTrump is a prime example. That hatred will blind those haters to the danger in what has been described regarding the treatment of Cohen, Trump, Broidy and Hannity.

Not only in addressing this Cohen situation, but in every moment of our living, we would do well to learn from the words of Martin Niemöller. This background and his words are reported at https://www.ushmm.org/wlc/en/article.php?ModuleId=10007392:

“Martin Niemöller (1892–1984) was a prominent Protestant pastor who emerged as an outspoken public foe of Adolf Hitler and spent the last seven years of Nazi rule in concentration camps.

“He said, ‘First they came for the Socialists, and I did not speak out – because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out – because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out– because I was not a Jew. Then they came for me—and there was no one left to speak for me.’”

 

PHOTO: Michael Cohen

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