RUTHFULLY YOURS

The Manhattan law office of Michael Cohen, President Donald Trump’s personal attorney, made for an unusual target for federal agents, who raided it Monday morning.

Typically, federal agents need special permission to comb the files of an attorney, whose client communications are generally protected from disclosure, legal experts said. To obtain a federal warrant, Justice Department officials need a special finding that an attorney’s office contains crucial evidence, said Christopher Slobogin, a criminal-procedure expert at Vanderbilt Law School.

It is unclear if agents targeted client files or were searching for business records falling outside the scope of attorney-client privilege, though the lines separating them aren’t always clear. Steve Ryan, a lawyer for Mr. Cohen, said Monday that the search had resulted in the “seizure of protected attorney-client communications between a lawyer and his clients.”

When searching the offices of an attorney who is a subject of an investigation, “prosecutors are expected to take the least intrusive approach,” according to the U.S. Attorneys’ Manual, which instructs prosecutors to consider a subpoena before resorting to a search warrant.

The raid carries risks for the Justice Department, as well. The attorney-client privilege generally shields interactions between lawyers and clients from being deployed as evidence against a defendant. If government lawyers use privileged communications to build their case, a court could deem their entire prosecution tainted.

To guard against that, the Justice Department uses what are known as “taint teams,” groups of government attorneys who are segregated from Federal Bureau of Investigation agents and prosecutors involved in the investigation, said Daniel Goldman, a former assistant U.S. attorney for the Southern District of New York. Taint teams are charged with sifting through seized files and determining what prosecutors can use.

Courts have approved the use of taint teams, but criminal defense lawyers have long criticized the practice as an example of the fox guarding the chicken coop. In rare cases, a judge could appoint an independent special master to review the files or examine seized documents him or herself.

Attorney-client privilege is intended to allow lawyers to give robust legal advice without worrying about incriminating a client. But attorney-client information may not be protected if the communications were in service of an illegal act, under the “crime-fraud exception” to the privilege. CONTINUE AT SITE

Gov. Andrew Cuomo has a disturbing new way to raise revenue: using government muscle to squeeze private organizations into “voluntarily” writing billion-dollar checks. That’s what he did to Fidelis Care, a nonprofit health plan affiliated with the Catholic Church, and its would-be buyer, Centene Corp.

In a murky deal announced on Good Friday, Fidelis and Centene agreed to pay the state $2 billion over four years. The payments are not technically required by law. But Fidelis and Centene agreed to them after a three-month pressure campaign by Mr. Cuomo, including overt and implied threats to seize the funds, block the sale or both.

Fidelis would seem an odd target for a gubernatorial money grab. Founded in 1993, it specializes in health coverage for the poor. With 1.6 million members, it is the largest purveyor of state-sponsored programs such as Medicaid managed care, Child Health Plus and the Essential Plan, as well as Medicare Advantage and commercial ObamaCare coverage. It has played a big role in reducing the state’s uninsured rate, and it has not been publicly accused of wrongdoing.

What sparked Mr. Cuomo’s campaign was Fidelis’s pending sale to Centene, announced in September, for a price of $3.75 billion. The bishops planned to put the money into a charitable foundation in support of health care for the needy. Mr. Cuomo argued that the state was entitled to $3 billion of the proceeds because Fidelis earned most of its revenue from state programs. By that logic, the state could skim the savings accounts of public employees when they retire.

He also cited the precedent of Empire Blue Cross Blue Shield, which yielded billions to the state when it converted to for-profit status in the mid-2000s. But that was a unique transaction under a narrowly tailored law that applies to no other company.

Despite lacking a legal claim to the money, Mr. Cuomo pursued it aggressively. Bills he submitted to the Legislature would not only have seized 80% of the proceeds from the sale but also raided Fidelis’s reserve accounts if the deal were canceled. The bishops would have paid either way. The sale needed regulatory approval from two state agencies, the departments of Health and of Financial Services, leaving it vulnerable to delay or rejection by Mr. Cuomo’s appointees. CONTINUE AT SITE

Washington is full of blather, bombast and bullsh-t, but a line about Robert Mueller was the most important thing spoken or written there last week:

“Peter Carr, a spokesman for the special counsel’s office, declined to comment.”

Since Mueller’s office never says anything outside court publicly, who knew he had a spokesman or needed one?

The line was included in a Washington Post story that said Mueller told the White House that President Trump was not a target of the criminal investigation.

The story could be a big deal — if true. But the report is nonetheless remarkable because it was the first leak in memory that carried good news for Trump.

After breathless drip, drip, drip reports that had the president practically being frog-marched to a firing squad at dawn, the fever broke. Every dog has its day, and the Washington media decided this president’s day comes once every 15 months.

True to form, news outlets immediately pivoted back to their regularly scheduled programming of stories saying Trump is in imminent danger. The New York Times and ABC declared that George Nader, a Lebanese-American businessman, though a stranger to readers, is now Mueller’s hottest witness.

Enough.

The violent swings of the leaky pendulum make this an excellent moment to call timeout on the Mueller probe. What does he have, where is he going and when is he going to get there?

James Comey’s book comes out next week. While promoting “A Higher Loyalty: Truth, Lies, and Leadership” the former director of the Federal Bureau of Investigation should face some tough questions. First, will he correct the postelection distortions by “friends and associates” meant to justify his decision to send the Oct. 28, 2016, letter to Congress? That letter—which announced the FBI was reopening its investigation into Hillary Clinton’s emails—almost certainly handed Donald Trump the presidency.

In an Oct. 29, 2016, internal memo, Mr. Comey claimed he was “obligated” to inform Congress because of a public commitment he had made during a congressional hearing. But that is untrue. On Sept. 28, 2016, Rep. Lamar Smith (R., Texas) had asked what the FBI chief would do if anything new on the Clinton emails issue was discovered. Mr. Comey responded only that “we would certainly look at any new and substantial information.”

The FBI began reviewing emails found on former Rep. Anthony Weiner’s laptop on Oct. 31, 2016, some four weeks after Mr. Comey was made aware of their existence. Agents completed their work on Nov. 5. Since it took less than a week to review the emails, couldn’t Mr. Comey have done so before informing Congress? If Mr. Comey argues he didn’t know how long it would take, the question remains: Why didn’t he look first? This is especially important given the undeserved political damage caused by the letter.

Mr. Comey also falsely claimed that the FBI needed to obtain a warrant before reviewing the Clinton emails on Mr. Weiner’s laptop. In fact, attorneys for Huma Abedin and Mr. Weiner told the New Yorker’s Peter Elkind that they would have “readily acceded” to FBI requests to review the Clinton emails without a warrant. But Mr. Comey and the FBI never asked. Why?

Then there is the still-unexplained delay between Mr. Comey’s being told about the Weiner-Clinton emails and obtaining a warrant. On Oct. 3, 2016, Mr. Comey first learned about the discovery of the new emails. Yet it wasn’t until Oct. 30 that he and the FBI obtained a warrant to look at them. Many conservatives believe Mr. Comey and Deputy Director Andrew McCabe deliberately delayed the review to help Mrs. Clinton, but the opposite is the case.CONTINUE AT SITE