William F. Buckley Jr., the founder of the conservative journal The National Review, is surely spinning in his grave now that Donald Trump is president.
The late Mr. Buckley was a conservative intellectual who nonetheless denounced racists, white supremacists, and anti-Semites and wanted no part of them in his movement.
With those people whom Buckley ostracized comprising the base of President Trump’s support, and anti-intellectualism now joining anti-science and anti-fact as the pillars of the Republican party’s guiding ideology, The National Review finds itself outside the conservative mainstream that it once exemplified.
Despite its natural antipathy to Trumpism and its fervent opposition to Russia, the conservative publication has until now been somewhat skeptical toward the accusations of collusion between the Trump administration and the Kremlin, as well as toward the accusations of obstruction of justice.
The publication’s contributing editor, Andrew C. McCarthy, has just published an article that examines the raid on the offices and residences of Trump attorney/fixer Michael Cohen and has now determined that this time Trump has real reason to worry.
McCarthy was formerly a prosecutor for the U.S. attorney’s office in the Southern District of New York (SDNY), the same office that instigated the raid on Cohen with the acknowledgment that it was actively pursuing a criminal investigation against him. As such, he’s intimately familiar with the SDNY’s working methods and thought processes.
He calls the probe into Cohen’s actions “a very live criminal investigation” and warns that “anyone potentially connected to it should be worried.” In this case, that anyone happens to be president of the United States.
Here’s McCarthy’s take on what’s going on in the SDNY investigation:
“I believe that the government is investigating whether there was, in connection with Trump’s White House bid, a conspiracy to commit fraud and extortion for the purpose of silencing potentially compromising sources — specifically, people in a position to portray Donald Trump as a womanizer.”
“Clearly, the prosecutors regard Trump and Cohen as potential co-conspirators. That does not mean a conspiracy will be proven, but the possibility is certainly being scrutinized. Here, it is important to bear in mind a distinction from the Russia investigation: This is not a counterintelligence matter; the SDNY is unquestionably conducting a criminal investigation, and a federal judge would not have authorized search warrants absent finding probable cause that federal crimes may have been committed.”
McCarthy goes on in the article to exhaustively detail Cohen’s work for Trump in the Stormy Daniels and Karen McDougal sexcapades, as well as his recently revealed role in the $1.6 million payoff to the pregnant Playboy model mistress of top Republican National Committee fundraiser Elliott Broidy.
It is McCarthy’s compelling explanation as to why the material seized by the FBI in the Cohen raids is not protected by attorney client privilege, however, that should have President Trump worried the most.
“…the only thing protected in a lawyer’s office are attorney–client communications and work product. If Cohen had incriminating items unrelated to attorney work in his office, being a lawyer does not shield him from liability. Furthermore, if there is no attorney–client relationship on a particular matter, there is no privilege. Trump and Cohen both say that Cohen did not tell Trump about the Clifford arrangement. Sounds implausible, but on its face it means there was no attorney–client relationship regarding that transaction.”
“More important, if a lawyer is involved with a client in a criminal conspiracy, the crime-fraud exception to the attorney–client privilege strips their communications of privileged status. It seems evident that prosecutors are investigating on the theory that Clifford, McDougal, and perhaps others were defrauded or extorted into silence. The fact that they accepted money does not foreclose the possibility that their agreement to remain silent was procured, in part, by trickery or threats.”
In short, McCarthy believes that the SDNY prosecutors will succeed in using the seized evidence from Cohen in their prosecution, and, if the stories about the lawyer recording all of his conversations are true, then Trump has real reason to be worried.
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