I think people lose sight of the fact that the United States of America is facing its gravest Constitutional crisis since the Civil War, and that we are now on the brink of the confrontation that will do much to decide the outcome.
That piece from Benjamin Wittes at Lawfare was published Tuesday, before we knew the object of the raid: The tapes Cohen almost certainly made of his phone conversations. The Washington Post broke that story, which is behind a paywall, so I’ll quote it:
“We heard he had some proclivity to make tapes,” said one Trump adviser, who spoke on the condition of anonymity because of the ongoing investigation. “Now we are wondering, who did he tape? Did he store those someplace where they were actually seized? . . . Did they find his recordings?”…
It is unknown whether Cohen taped conversations between himself and Trump. But two people familiar with Cohen’s practices said he recorded both business and political conversations. One associate said Trump knew of Cohen’s practice because the attorney would often play him recordings Cohen had made of his conversations with other top Trump advisers. “It was his standard practice to do it,” this person said.
Cohen wanted his business calls on tape so he could use them later as leverage, one person said. Cohen frequently noted that under New York law, only one party had to consent to the taping of a conversation, this person added.
Targeting such tapes would explain the extraordinary steps taken to raid Cohen’s office. As Josh Marshall pointed out, such tapes would be exceedingly valuable to investigators, and comparatively easy to destroy and destroy quickly, which would provide justification for the raid.
Trump knows Cohen has tapes, because Cohen played one of them for him. I’m kind of surprised he hasn’t fired Rosenstein already, and I wonder if Republicans have told him in private that they won’t support him if he does.
A hearing is taking place right now at the federal courthouse in Manhattan to determine whether the tapes, if there are any, are covered by attorney-client privilege. Talking Points Memo has a reporter there.
UPDATE: Cohen’s lawyer argued that Cohen should get to determine what material might be covered by attorney-client privilege, rather than follow the standard procedure for such cases. Trump had an attorney there to second it. Looks like another hearing set for Monday.
Meanwhile, NBC reports Rod Rosenstein is prepared to be fired after approving the raid.