ACLU says it is okay for the government to poke around in a law office if two government workers agree

Here’s an interesting article from the ACLU:

We don’t know all the reasons and circumstances for the FBI search of Cohen’s office and home. News reports suggest that the focus is on Cohen’s payments to two women, adult film star Stormy Daniels and former Playboy model Karen McDougal to suppress their stories of affairs with Donald Trump, and that these payments may have been illegal. But what is clear is that prosecutors had to overcome high hurdles to obtain the search warrant. That the warrant was issued is not a sign that the attorney-client privilege is dead. It is, on the contrary, a sign that the rule of law is alive.

Essentially, the ACLU takes the position that if two government workers (prosecutor plus judge) can agree to dislike an individual then the government can send in the FBI (not too busy thanks to hanging up on anyone offering school shooter tips, Tsarnaev brother tips, 9/11 hijacker tips, etc.) to raid the individual’s lawyer’s office.

Separately, the particular “crime” that the ACLU thinks justifies sending out the FBI on a hunting expedition, was a purported exchange of cash for sex. Back in 2014, however, the ACLU published an article saying that this kind of exchange should not be a crime:

The ACLU position holds that laws against prostitution violate “the right of individual privacy because they impose penal sanctions for the private sexual conduct of consenting adults, …

The myriad federal, state and local laws against prostitution mean that “rights for sex workers” will require more than decriminalizing sex for money or other consideration.

Sex workers are human beings with the right to self-determination. It’s time for policymakers, the courts and law enforcement to recognize they are equally deserving of the civil rights, civil liberties, and above all human rights accorded to the rest of us.

I guess there is a potentially nuanced position here. The ACLU is not objecting to whatever Ms. Daniels and Ms. McDougal might have received in exchange for having sex with an old guy 12 years ago, but they are objecting to Ms. Daniels and Ms. McDougal being paid not to talk about their supposed sexual transactions. But why? If the ACLU promotes freedom to speak, why wouldn’t they also support the freedom to profit from not speaking? And if the ACLU supports prostitution, why wouldn’t the ACLU also support prostitution with an extra fee for discretion? If the only way for an elderly American to hire a prostitute is with the understanding that the prostitute will then post a YouTube video of the encounter and/or go on TV to talk about the transaction, doesn’t that reduce demand for prostitution, an infringement of prostitutes’ economic rights?

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34 Comments »

  1. Lydia

    April 12, 2018 @ 10:33 am

    1

    I believe there is a question about whether Ms. Daniels and Ms. McDougal may have been paid out of campaign funds. While I’m not sure, it seems to me that there might be election financing- and fraud-related issues with doing so.

    Also, I believe they’re looking for evidence of Russian ties and something about grab-’em-by-the-pussygate.

    He’s welcome to pay whomever he wants for whatever consenting sexual services he wants from his private billions, however, as far as I’m concerned.

  2. Oliver Roup

    April 12, 2018 @ 10:36 am

    2

    Philip, it’s not that they agree to dislike someone it’s that they agree there is evidence a crime has been committed. We don’t know the scope of the crimes they believe occurred but at minimum they include violations of campaign finance law and allegations that lawyers for both parties colluded to obtain a particular outcome for his client. There are long-standing and well articulated rules governing when it is appropriate to search a attorney’s office and the procedures to do so.[1] All evidence so far suggests those rules were followed.

    [1] https://www.justice.gov/usam/usam-9-13000-obtaining-evidence#9-13.420

  3. philg

    April 12, 2018 @ 10:58 am

    3

    Lydia, Oliver: Campaign finance is the issue? http://fortune.com/2016/12/09/hillary-clinton-donald-trump-campaign-spending/ says that the Trump campaign raised (and presumably spent) $340 million total.

    So your concern is that the campaign spent $130,000 paying a young woman who had sex with the elderly candidate, maybe another $130,000 to a second young woman who had sex with the elderly candidate, and then wasted $339.75 million?

    The possibility that 0.076 percent of Trump campaign spending was sex-related is sufficient to get people whose primary mission is “civil liberties” to support the idea that the FBI should be raiding lawyers’ offices and carting off the records? I can understand how a private citizen who is curious about the economics of sex work would support the FBI raid, but I can’t figure out how this fits the ACLU’s stated mission or is consistent with the ACLU’s previous positions on the proper role of government.

  4. Lydia

    April 12, 2018 @ 11:00 am

    4

    As we used to say at Vulcan, a billion here, a billion there, and pretty soon it adds up to real money.

    The issue is not about how much he spent. If he spent it on paying off hush money to anyone (sex workers or otherwise), he may be in violation of the law. Or he may not. Time will tell.

    I hope he goes down for this. It is a fitting end to President Zizmore’s life.

  5. Ivan

    April 12, 2018 @ 12:08 pm

    5

    “I can’t figure out how this fits the ACLU’s stated mission or is consistent with the ACLU’s previous positions on the proper role of government”

    It does not have to be. Since ACLU squarely belongs to the camp whose primary goal is to eliminate Trump, lawyer-speak is adjusted accordingly. As Mueller sorry Lavrentiy Beria famously said, “Show me the man and I’ll find you the crime”.

    Dershowitz is a funny exception to the predominantly lefty lawyer caste in this country, not sure what motivates him.

    “The legal academy is significantly more liberal than the legal profession, which is notable because the legal profession itself is more liberal than the public at large.” , https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/04/17/how-ideologically-uniform-is-the-legal-academy/?utm_term=.0757a9ec1e7b

  6. Lydia

    April 12, 2018 @ 12:11 pm

    6

    Ivan– Dershowitz is an observant Jewish person supportive of Israel. Religious observance and support of Israel typically put people at odds with the left unless, right now, the religion is Islam.

  7. philg

    April 12, 2018 @ 12:20 pm

    7

    Lydia: I’m sure that there are a lot of folks who work for the government who would share your desire to see President Trump “go down”. https://federalnewsradio.com/mike-causey-federal-report/2017/04/are-feds-democrats-or-republicans-follow-the-money-trail/ says that 99 percent of the money donated by Department of Justice employees, for example, was donated to Hillary Clinton (compare to 95 percent to Democrats by government workers overall).

    But if you’re the ACLU why do you cheer when two Democrats within the government are able to send the FBI to raid a Republican’s lawyer’s office on the pretext that you need to know about $130,000 paid to an adult woman who had sex 12 years ago?

    You’re comparing this to “a billion here, a billion there”? If Stormy Daniels had sex with a married successful dentist in Massachusetts, for example, the dentist and his wife would be paying more than $130,000 per year in child support for 23 years. How can this $130,000 be significant enough to warrant FBI attention when it is less than 4% of the profit that Ms. Daniels could have obtained by having sex with a dentist?

    It is a “violation of the law” to jaywalk. If a Presidential candidate or President jaywalks, do we want to spend $25-50 million on an FBI investigation? In the context of a $340 million campaign I fail to see how a $130,000 expenditure rises above the level of jaywalking. But in any case, why is the ACLU on the side of the FBI here? The organization says the prostitution should be legal. If sex is a legal product, why would they then be upset about a Presidential campaign spending some of its $340 million on a legal product?

  8. paddy

    April 12, 2018 @ 12:48 pm

    8

    It’s clear that ideology trumps (no pun intended!) intellectual consistency.

  9. Lydia

    April 12, 2018 @ 12:50 pm

    9

    For what it’s worth, I fully support the ACLU if they want to defend Trump. I think everyone deserves a vigorous defense. And if he hasn’t committed a valid crime, I’m fine for him to go down for one of the others I’d bet he probably has committed. 🙂

  10. David K

    April 12, 2018 @ 12:51 pm

    10

    To Oliver’s point, Popehat says this is legit:

    https://www.popehat.com/2018/04/09/the-search-of-trump-lawyer-michael-cohens-office-what-we-can-infer-immediately/

    To the ACLU wading in here… It’s my long-held-and-as-yet-to-be-disproven position that the American left is DEFINED by being completely ambivalent about hypocrisy. Whatever it takes to get the job done, morals or ethics or standards be damned. Besides the ACLU’s positions on the FBI, sex work, et. al., I strongly suspect all parties involved couldn’t have given two shakes about Bill Clinton’s dozens of extramarital affairs, and worse. At least Bill was smart enough not to leave a money trail.

    I remember watching an episode of The Apprentice. In it, one of the male contestants was known to be cavorting with one of the female contestants. The relationship came up in a board room meeting. The man claimed that they were just friends. Trump said, “I’ve had some friends; cost me a lot of money.” The context was, of course, his divorces, but it would play well in light of the recent Daniels revelations. I just looked, and I’m actually shocked that I couldn’t find this clip on YT. I expected it to be making rounds.

  11. Lydia

    April 12, 2018 @ 12:53 pm

    11

    I agree that the left has no principles and support taking Trump down only if he’s actually committed a crime. But I hope he has committed a crime, because he’s an a-hole.

  12. philg

    April 12, 2018 @ 1:08 pm

    12

    Lydia: “think everyone deserves a vigorous defense. And if he hasn’t committed a valid crime, I’m fine for him to go down for one of the others I’d bet he probably has committed.”

    I’d bet that somewhere in your neighborhood there is someone who has committed a crime involving at least $130,000 in potential damages or fines (remember that “crime” is a broad category these days; See Three Felonies a Day for how it is virtually certain that Trump, you, and all of your neighbors have almost certainly committed at least one felony). What would be great is if we can have the FBI go from house to house gathering up disk drives and papers and also, for those neighbors who have lawyers, to gather up documents from the respective lawyers. Then each neighbor will get a vigorous defense against prosecution for whatever crimes have been uncovered. It would be awesome to have ACLU support for my plan!

    [If you think that the above sweep is too broad, we can limit the FBI’s investigation to (a) anyone known to hired a sex worker within the preceding 12 years, (b) anyone who had put a Trump sign on his or her lawn, (c) anyone who disagreed with the political positions of the average Justice Department employee, etc.]

  13. Tony Doe

    April 12, 2018 @ 1:28 pm

    13

    It’s plausible the ACLU has an argument for defending the raid, but it’s fascinating how all of their opinions of legal norms happen to line up against Trump.

  14. superMike

    April 12, 2018 @ 1:35 pm

    14

    If you can’t have consensual sex with a porn star and then pay her some hush money without breaking the law (wasn’t this all years before he was a candidate for anything?), then the laws must be broken. The bit about some tough showing up and obliquely threatening her kid sound like they should be investigated, though.

  15. Lord Palmerston

    April 12, 2018 @ 1:47 pm

    15

    Nothing new about exploiting executive powers for partisan ends, of course. For example, in the 1940s FDR had Moe Annenberg relentlessly pursued for tax fraud, culminating in prison time. When in another case a junior Democratic congressman was the culprit, somehow the IRS decided to settle for a penalty payment, saving LBJ’s career.

    But has there been a previous case where executive powers have been used against the president? It appears that getting elected president no longer places the incumbent in control of the executive, if he won due to the wrong kind of voters. Interesting times!

  16. Lydia

    April 12, 2018 @ 2:37 pm

    16

    My understanding is that there is a notion called “probable cause” that prevents us from searching people’s homes and offices willy-nilly. And I suspect strongly that the role Russia has played in Trump’s investments is part of the reason his lawyer’s offices are being searched.

  17. Anonymous

    April 12, 2018 @ 2:37 pm

    17

    It’s like Watergate redux. No need to break in, though, just send in the jackboots and take it.

    Even Nixon couldn’t have dreamed this stuff up.

  18. philg

    April 12, 2018 @ 2:58 pm

    18

    Lydia: We’re back to the Russia Scare? If Russia is controlling Donald Trump, and thereby the entire executive brand of our Federal government, shouldn’t the FBI have done something about it sooner than 1.5 years into the guy’s presidency?

    (And, if Russia actually is controlling the U.S. government, why can’t we have subways that run every minute every weekday as in Moscow?)

  19. Lydia

    April 12, 2018 @ 3:00 pm

    19

    I do believe eventually this fishing expedition is going to find a lot of unsavory connection with Russia. I concede your point, however, that the mechanics of the expedition itself may lie outside of my values.

  20. Lydia

    April 12, 2018 @ 3:01 pm

    20

    SuperMike, the payment was in Sep ’16 two months before the election. I’m even fine with it so long as the campaign didn’t pay the hush money.

  21. Lydia

    April 12, 2018 @ 3:18 pm

    21

    Also, I’ve always appreciated your iconoclasm. Carry on the good fight.

  22. philg

    April 12, 2018 @ 3:21 pm

    22

    Lydia: Is there some lower limit to the amount of money that you would consider immaterial in the context of a $340 million campaign? Here’s one government worker going to Paris with his wife at a cost of $122,000: https://www.nytimes.com/2018/02/14/us/veterans-affairs-shulkin.html (the Times neglects to mention that he was an Obama appointee!).

    It costs the government more than $200,000 per hour to run a B747 as Air Force One (that’s after paying the fixed costs for the plane, the hangar, etc.; compare to about $20,000 per hour when an airline runs a B747). See https://www.washingtonpost.com/news/the-fix/wp/2016/07/05/air-force-one-is-a-heck-of-an-expensive-perk-for-taxpayers/?noredirect=on&utm_term=.778839e73809 for some examples of how much taxpayer cash was squandered on operating Air Force One during recent campaigns.

    Another way to look at this is that the Federal government spends approximately $4 trillion per year. That’s roughly $130,000 per second on a 24/7 basis. So the entire public debate is about one second of federal spending (though of course there is no evidence that public money was involved).

  23. philg

    April 12, 2018 @ 3:30 pm

    23

    The above analysis gives me an idea for how a President can transfer funds to private citizens, including sex workers.

    The people who are going to get paid buy the FBO at a quiet airport, which will cost them essentially nothing. The President then says “Nowhereville is really the heartland of the U.S. so I’m going to go there every week to give a talk at the local high school.” Now Air Force One shows up at this formerly sleepy airport and buys Jet-A at whatever price the FBO wants to charge (also pays ramp and handling fees). The flock of additional planes that arrive before Air Force One also have to pay the fees, buy fuel, etc.

    I don’t think that this would break any laws. Nothing limits a President’s ability to engage in pointless travel on the taxpayer’s dime.

    [Example: https://www.boston.com/news/politics/2018/03/18/trump-new-hampshire-monday (talk at Manchester Community College then “visit the Manchester Central Fire Station to get an up-close look at Safe Station”; a great business day for Signature Flight Support (see https://www.signatureflight.com/locations/mht ). Note that Signature is owned by https://en.wikipedia.org/wiki/BBA_Aviation in London, not by Stormy Daniels or her friends.]

    Lord P: “has there been a previous case where executive powers have been used against the president?” That is a great question! You’d expect to see the president harassed by members of the other party in Congress, not by supporters of the other party who are nominally working for the president. Maybe the Department of Justice is special because 99% of the employees (as measured by donations) support the Democrats? And there is no way to fire 99% of the people in an organization?

  24. Tom

    April 12, 2018 @ 5:16 pm

    24

    “A billion here, a billion there, pretty soon, you’re talking real money.” (Senator Everett Dirksen.)

    I remember this in the context of someone making supercomputers in the Cray days trying to get the attention of the highest circles and getting the reply that it wasn’t even close to the cost of a carrier. Not worth their time.

  25. toucan sam

    April 12, 2018 @ 6:44 pm

    25

    or how I learned to stop worrying and love the Trump!

  26. philg

    April 13, 2018 @ 11:36 am

    26

    Fresh from Harvey Silverglate, the author of that book about how the typical American can be busted at any time due to the number and breadth of felony crimes: https://news.wgbh.org/2018/04/13/going-after-trumps-lawyer-michael-cohen-when-pursuit-becomes-blood-sport

    Some excerpts…

    The Manhattan United States Attorney’s Office’s remarkable raid of the law office and home of Michael Cohen, President Donald Trump’s personal attorney, is an affront to the rule of law. But it is hardly surprising. It simply confirms a fact about the federal law enforcement apparatus: the DOJ and FBI will stop at nothing to land the ultimate target of an investigation, whether it be Donald Trump or any other American citizen. All of us will learn what the inhabitants of George Orwell’s world in Nineteen Eighty Four figured out from experience: Resistance is futile.

    More specifically, the raid demonstrates that the permanent law enforcement bureaucracy, which invariably pursues its own agenda that defies true change and reform, will stop at nothing to remove Trump from office and convict-and-imprison all those who on principle or out of loyalty refuse to cooperate (or, in the immortal words of Alan Dershowitz, refuse “not only to sing, but also to compose”).

  27. Francisco

    April 13, 2018 @ 1:39 pm

    27

    philg: «But if you’re the ACLU why do you cheer when two Democrats within the government are able to send the FBI to raid a Republican’s lawyer’s office on the pretext that you need to know about $130,000 paid to an adult woman who had sex 12 years ago?»

    Who are the Democrats? Can you clarify? The ACLU article says:

    «Deputy Attorney General Rod Rosenstein, a Trump appointee, signed off on the search. Indeed, all of the top officials involved in the decision to go forward with the search are Republican: Robert Mueller, Rosenstein, and FBI Director Christopher Wray. The interim U.S. Attorney in Manhattan, Geoffrey Berman, is also a Republican, although he reportedly recused himself. »

    These are all (Republican) Trump appointees or appointed by Trump appointees.

  28. Francisco

    April 13, 2018 @ 1:59 pm

    28

    Silverglate makes an interesting commentary, but at one point he says:

    «At some point, we all will have to ask ourselves whether this brazen breach of a long-standing and highly-valued privilege, (…), was justified in order to learn whether a married private citizen (Trump was not yet, of course, in public office) lied about a one-night stand and enlisted his lawyer to pay-off the woman whose loose lips could sink, if not his reputation and his standing among those who he hoped would vote for him, then at least his marriage.»

    The question, to my understanding is not this, but whether these were in-kind campaign contributions, that aren’t declared. Cohen says he paid the hush money out of his pocket, for something that, according to him, didn’t actually happen, but that «Just because something isn’t true doesn’t mean that it can’t cause you harm or damage (…) I will always protect Mr. Trump.”» So clearly, he was trying to help Trump’s cause during the campaign. It could have been about any other type of revelation (even if you believe he did it out of his good heart). You can still argue about the underlying merit of whether it’s worth pursuing an infraction of that amount, but the point is that it’s still illegal. It’s 46 times the legal limit of $2,700.

    Furthermore, with Mr. Trump’s history of accusations, as well as the Access Hollywood tape, arguing that he’s trying to prevent his marriage from sinking is rather disenchanting.

  29. the other Donald

    April 13, 2018 @ 4:22 pm

    29

    Election law is weak annd strange, but it is the law. No limit on the amount spent to campaign, but a limit on individual direct personal contributions, in money or in kind. It seems this (or these) transactions were unnecessary in the event, since even having pussygate on tape was not enough to damage the Donald. He could just say “nothing but a little canoodling between locker room ripostes, and it probably was Hillary not me” and all would have been forgiven. It has come to this in politics. Where to now?

  30. philg

    April 13, 2018 @ 4:33 pm

    30

    Francisco: Interesting. I wonder how that link above found that 99% of donations from Department of Justice employees went to Hillary.

    the other Donald: Assuming that money was paid to keep a sex worker quiet, how is it a campaign contribution? First, the person paying the money might end up getting reimbursed eventually somehow (so it wasn’t a contribution at all). If the person making the contribution isn’t reimbursed then it still isn’t obviously a “campaign contribution”. Plenty of entirely private citizens pay money to keep their sexual activities from becoming public knowledge. When lawyers are marketing abortions, for example, they may offer the abortion at a premium to the discounted child support cashflow if the buyer has a need to keep things quiet (see http://www.realworlddivorce.com/ChildSupportLitigationWithoutMarriage ).

  31. Oliver Roup

    April 13, 2018 @ 8:28 pm

  32. Francisco

    April 14, 2018 @ 2:19 am

    32

    philg: yes, it says 99% of donations from DOJ workers donors went to Democrats. It also says:
    «As far as political giving goes, most feds don’t. Period. But of those that do, the vast majority donate to Democratic candidates.»

    I’m not going to pretend all Republicans are stingy, or that there may be a majority of democrats working in the federal government. But that article doesn’t say that 99% of DOJ workers are democrats donors. So saying things like «And there is no way to fire 99% of the people in an organization?» is disingenuous.

    By definition, a large staple of republican ideology is defending smaller government, so it’s bound to be that the applicant pool is a politically biased population. Yet the leadership is Republican.

    What you’re implying is that there political affiliation makes them incapable of performing their job, or to taint it deliberately.

  33. philg

    April 14, 2018 @ 10:31 am

    33

    Oliver: That the government spend $50 million(?) on an investigation and found something that you consider interesting doesn’t answer the civil liberties (ACLU) angle. If the FBI searched every Trump supporter’s home they would no doubt find some interesting stuff. (Separately, I’m not sure why a tape of a conversation with a sex worker’s lawyer would shed any light on the question of a campaign finance violation. If the sex worker’s lawyer is doing his or her job, the goal is to get money from the sex worker, not to ask questions about the source of the funds or whether the payor will one day be reimbursed.)

    Here’s a concrete example:

    http://www.dailymail.co.uk/news/article-5613641/Top-RNC-official-NDA-Playboy-model-used-PSEUDONYMS-Trump-Stormy.html?ito=social-facebook

    “Republican National Committee deputy finance chair Elliott Broidy – who was appointed by Trump – agreed to pay $1.6 million to a woman who claimed she was impregnated by him during a sexual affair, the Wall Street Journal reported.”

    It might be interesting to the public to learn some of the details of the abortion sale, but if the pregnant woman was selling at a premium to the net present value of the expected child support cashflow (e.g., maybe they had sex in Nevada where profits are capped at roughly $200,000 per child) in exchange for discretion, this kind of exposure is harmful to Americans who sell abortions (since they can’t charge extra for privacy) as well as harmful to workers in the divorce industry who assist with the sales. More importantly, why would the ACLU cheer having the FBI seize the tapes because they don’t like the political views of one party to the abortion sale?

    Francisco: Based on the statements of my Facebook friends who supported Hillary, I would say that any of them would be inclined to take an “ends justify the means” approach if they were working at the Department of Justice. Since Trump is evil, for example, it is virtuous to get rid him regardless of the method used.

  34. Michael OKane

    April 19, 2018 @ 7:40 am

    34

    There may or may not be a campaign finance violation, but there definitely was a misapplication of bank funds felony:

    –Cohen didn’t have the cash to pay Stormy.
    –He took out a mortgage.
    –In the mortgage application he didn’t truthfully tell the bank what the funds would be used for.

    That’s all it takes.

    If Trump knew, there is a conspiracy charge against him as well.

    Read more: https://medium.com/@al_mu7ami/trumps-presidency-is-doomed-64baf314649c

    A search of a lawyer’s office should be restricted. We all know now that Sean Hannity was a Cohen client (whether Hannity realizes this or not). Hannity is accused of no wrongdoing. His conversations with Cohen and the fact that he spoke to Cohen should be protected–they were not. This is very troubling for the future of the attorney-client privilege.

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