FBI raid of Trump’s personal lawyer’s office

A high development in the US with the FBI raiding the home and office of Michael Cohen, a lawyer closely associated with Donald Trump. This doesn’t mean Trump has been found to have done anything wrong, but it looks a more serious situation for Cohen.

Reuters: FBI raids offices, home of Trump’s personal lawyer

The Federal Bureau of Investigation on Monday raided the offices and home of U.S. President Donald Trump’s personal lawyer Michael Cohen, law enforcement sources said, in a dramatic new development in a series of probes involving close Trump associates.

Cohen’s lawyer, Stephen M. Ryan, said that U.S. prosecutors conducted a search that was partly a referral by the Office of Special Counsel, Robert Mueller.

Mueller is investigating whether members of Trump’s 2016 campaign colluded with Russia during the U.S. presidential election. Trump has called the probe a “witch hunt” and denied any collusion.

The raid could increase legal pressure on the president, because it involves the records of his longtime attorney and indicates a second center of investigations in Manhattan, alongside Mueller’s Washington-based probe.

Cohen has been at the center of a controversy over a $130,000 payment he has admitted making shortly before the 2016 election to porn star Stormy Daniels, who has said that she had sex once with Trump in 2006 and was paid to keep quiet about it.

Trump reacted with unusually harsh language to news of the raid.

“It’s a disgraceful situation. It’s a total witch hunt. I’ve been saying it for a long time,” Trump said.

Former federal prosecutor @renato_mariotti tweeted:

This is the most important paragraph of today’s article about the search warrant of Trump lawyer Michael Cohen’s office.

Every search warrant has a list of “items to be seized,” and a warrant for a lawyer’s office has to be carefully written. Communications between Trump and Cohen were within the narrow categories of documents listed in the “items to be seized.”

That suggests that the communications between Trump and Cohen related in some way to the federal crime for which Cohen is under investigation. A “taint team” will review these communications to determine which are privileged.

That means that Cohen is under investigation and that there is substantial evidence that evidence of a crime was at his office. It also means that federal prosecutors believed that they could not obtain the same records via subpoena. That’s unusual and interesting.

The United States Attorneys’ Manual (DOJ’s guidelines for federal prosecutors) disfavors search warrants of attorneys’ offices. Section 9-13.420 states that “prosecutors are expected to take the least intrusive approach” and should consider subpoenas instead of a warrant.

Section 13.420 requires authorization by the United States Attorney or Assistant Attorney General, consultation with the Criminal Division of the Justice Department, a search warrant that is as narrow and specific as possible, and procedures to safeguard privileged materials.

The reason that searches of attorney offices are disfavored is because they can be abused by prosecutors who want to intimidate defense counsel or obtain privileged information. That is why all of those safeguards exist, and the fact that they were overcome tells us something.

The fact that federal prosecutors obtained a search warrant tells us that they believed that they would not obtain the same records if they used a subpoena. That’s not only what 9-13.420 requires, but it’s also common sense–the prosecutors had an incentive to use a subpoena.

Cohen is an attorney who has his own lawyer. If the prosecutors used a subpoena, Cohen’s attorney would be obligated to go through all the documents and materials himself and produce only what’s relevant to the prosecutors. He would be responsible for organizing them as well.

Instead, prosecutors and FBI agents decided to take upon themselves the hefty task of seizing these documents, setting up complicated procedures to weed out privileged materials, and organize and digitize the documents. They wouldn’t have done that if they didn’t have to.

This suggests that they have some information about Cohen that suggests that he would destroy evidence, hide evidence, or otherwise deceive the prosecution team. So what does this mean for Trump? It’s an issue for him for at least two reasons.

First, his relationship with Cohen appears to go beyond a typical lawyer-client relationship, by Cohen’s own description. Communications between Cohen and Trump would be reviewed by a “taint team” that is separate and walled off from the investigators.

If the taint team found communications between Trump and Cohen that were not privileged, those communications could be used in the investigation. An example would be communications that are completely unrelated to legal advice, or communications furthering an ongoing crime.

Second, Trump should be concerned because Cohen appears to have significant potential criminal liability. He could potentially cooperate against Trump, although he appears unlikely to do so. Trump could pardon Cohen for any federal offense, but he cannot pardon state crimes.

Most importantly, because the search warrant was required to be “drawn as specifically as possible,” the fact that the FBI seized Trump’s communications with Cohen suggests that the FBI believed that those communications may provide evidence in their criminal investigation.

That should worry Trump. It doesn’t necessarily mean that investigators believe Trump committed a crime, but it suggests that they believe that his communications would have potentially contained useful evidence. He was, at least, in close proximity of a crime.

One question that is raised by this news that we cannot answer is why Mueller chose to refer this case to Manhattan prosecutors instead of handling it himself. Perhaps we will learn more in the days to come that could shed light on his decision.

 

Dotcom settlement over police misconduct

A sudden splurge of Kim Dotcom news – he has announced he has settled with the police over misconduct over the raid – I think this is fair enough as the police seemed to take measures that were unjustified in the extent they went to.


Dotcoms Announce Settlement of Lawsuit Against New Zealand Police for Unreasonable Conduct During January 2012 Raid

Auckland, New Zealand, 3 November, 2017

Kim Dotcom and Mona Dotcom announce that they have resolved their lawsuit against the New Zealand Police in which the Dotcoms sought a remedy for their claim about the unreasonable use of force in the military-style raid of their family home in January of 2012. The Dotcoms also raised the concern that their home and family had been under intrusive visual surveillance by the Police which had not been authorised by the Court.

The complaint arose from events occurring in the early morning of January 20, 2012, when 72 police officers including the heavily armed Special Tactics Group (STG) and the Armed Offenders Squad (AOS) descended on the Dotcoms’ family home in Coatesville to make a number of arrests at the request of the United States in an Internet copyright matter. Landing two helicopters just outside the family home, the entry team sprang to action, wielding M4 Bushmaster rifles.

The forces entered the Dotcom home and held the Dotcom family, staff and guests at gunpoint. The officers caused considerable damage to the Dotcom property as they stormed through the house, around the grounds and over the roof. Mona Dotcom, who was 7 months pregnant with twins, and the Dotcom children were traumatised. Neither the Dotcoms nor their guests were allowed to talk to each other or their lawyers for an unreasonable period.

The United States’ basis for the raid, online copyright infringement, is not even a crime in New Zealand.

The lawsuit against the New Zealand Police sought an acknowledgment of the harm caused to the Dotcom family, including the children, Mona and Kim.

“Today, Mona and I are glad to reach a confidential settlement of our case against the New Zealand Police. We have respect for the Police in this country. They work hard and have, with this one exception, treated me and my family with courtesy and respect. We were shocked at the uncharacteristic handling of my arrest for a non-violent Internet copyright infringement charge brought by the United States, which is not even a crime in New Zealand. They could have easily knocked at our door at a reasonable hour and advised me of my arrest. Instead, due to what I believe was a misguided desire to cater to the United States authorities and special interests in Hollywood, a simple arrest became a Hollywood-style publicity stunt tailored to appease US authorities. The New Zealand Police we know do not carry guns. They try to resolve matters in a non-violent manner, unlike what we see from the United States. We are sad that our officers, good people simply doing their job, were tainted by US priorities and arrogance.” says Kim Dotcom. “We sued the Police because we believed their military-style raid on a family with children in a non-violent case went far beyond what a civilised community should expect from its police force. New Zealanders deserve and should expect better.”

Kim Dotcom further stated, “until recently, Mona and I wanted vindication in the High Court so that those involved would take responsibility for the raid. We have taken time to consider whether a trial would be in the best interests of our family. The New Zealand Government has recently changed for the better. Our children are now settled and integrated safely here into their community and they love it. We do not want to relive past events. We do not want to disrupt our children’s new lives. We do not want to revictimise them. We want them to grow up happy. That is why we chose New Zealand to be our family home in the first place. We are fortunate to live here. Under the totality of the circumstances, we thought settlement was best for our children.”

Ron Mansfield, New Zealand counsel for the Dotcoms, stated, “the Dotcoms hope that this action has brought the Police misconduct to everyone’s attention and that it has led to change in the way Police will handle future similar operations. The misconduct of the Government Communications Security Bureau (GCSB), which accepts that it also unlawfully spied on the Dotcom family by the interception of private communications over an extended period, remains before the Court. The GCSB refuses to disclose what it did or the actual private communications it stole. The Dotcoms understandably believe that they are entitled to know this. That action is pending appeal in the Court of Appeal.”


NZ Herald repeat most of this but add:

The settlement came after a damages claim was filed with the High Court over what was considered an “unreasonable” use of force when the anti-terrorism Special Tactics Group raided his $30 million mansion in January 2012.

The raid was part of a worldwide FBI operation to take down Dotcom’s Megaupload file-sharing website which was claimed to be at the centre of a massive criminal copyright operation.

Dotcom and three others were arrested and await extradition to the United States on charges which could land them in prison for decades.

The NZ Herald has learned earlier settlements were reached between police and others arrested, including Bram van der Kolk and Mathias Ortmann.

It was believed their settlements were six-figure sums and it is likely Dotcom would seek more as the main target in the raid.

 

Yemen raid reality check

The US raid in Yemen targeting members of Al Qaeda has inflicted civilian casualties as well, including children and a US commando.There has also been reports an American girl may have been killed.

Acting tough with the US military has it’s risks.

Al Jazeera: US admits civilians ‘likely’ killed in Yemen raid

Civilians were “likely” killed in a US commando raid in Yemen over the weekend and children may have been among the dead, the US military’s Central Command (CENTCOM) said.

“A team designated by the operational task force commander has concluded regrettably that civilian non-combatants were likely killed in the midst of a firefight during a raid in Yemen January 29. Casualties may include children,” CENTCOM said in a statement late on Wednesday.

Yemeni officials had previously said 16 civilians – eight women and eight children – were killed in the raid in the southern province of al-Bayda, but CENTCOM did not provide any numbers.

The civilian deaths appear to have occurred when US aircraft were called to help the commandos as they conducted the dawn raid that US officials said killed 14 members of al-Qaeda in the Arabian Peninsula (AQAP).

“The known possible civilian casualties appear to have been potentially caught up in aerial gunfire that was called in to assist US forces in contact against a determined enemy that included armed women firing from prepared fighting positions, and US special operations members receiving fire from all sides to include houses and other buildings,” the statement added.

Officials were conducting an ongoing “credibility assessment” to see if there may have been additional civilian casualties in the intense firefight, it said.

Since the January 29 raid, Washington has faced questions as to whether an eight-year-old American girl was killed during the firefight.

New York Times: Raid in Yemen: Risky From the Start and Costly in the End

Just five days after taking office, over dinner with his newly installed secretary of defense and the chairman of the Joint Chiefs of Staff, President Trump was presented with the first of what will be many life-or-death decisions: whether to approve a commando raid that risked the lives of American Special Operations forces and foreign civilians alike.

President Barack Obama’s national security aides had reviewed the plans for a risky attack on a small, heavily guarded brick home of a senior Qaeda collaborator in a mountainous village in a remote part of central Yemen. But Mr. Obama did not act because the Pentagon wanted to launch the attack on a moonless night and the next one would come after his term had ended.

With two of his closest advisers, Jared Kushner and Stephen K. Bannon, joining the dinner at the White House along with Defense Secretary Jim Mattis and Gen. Joseph F. Dunford Jr., Mr. Trump approved sending in the Navy’s SEAL Team 6, hoping the raid early last Sunday would scoop up cellphones and laptop computers that could yield valuable clues about one of the world’s most dangerous terrorist groups. Vice President Mike Pence and Michael T. Flynn, the national security adviser, also attended the dinner.

As it turned out, almost everything that could go wrong did. And on Wednesday, Mr. Trump flew to Dover Air Force Base in Delaware to be present as the body of the American commando killed in the raid was returned home, the first military death on the new commander in chief’s watch.

It may have been that Trump did little more than rubber stamp a planned incursion in this case, but “two of his closest advisers, Jared Kushner and Stephen K. Bannon” doesn’t give me a lot of confidence.

At least one US casualty plus significant embarrassment may not dent trump’s confidence he can sort eliminate Al Qaeda and ISIS, but it shows that it is not a simply thing to do, even on a small scale like this.

Scoop with part 2 of Hager raid files

Three weeks ago Scoop published documents related to the police raid on Nicky Hager, looking for evidence related to ther ‘Rawshark’ hack of Cameron Slater’s data.

Inside The Hunt For Rawshark – The Hager Raid Court File

They have just published a second set of documents, partially redacted:

Inside The Hunt For Rawshark – Hager Raid Court File Part 2

Scoop Independent News has secured access to the court file for the Nicky Hager Rawshark Raid Case and today publishes partially redacted versions a second group of documents released by the High Court.

They provide links to affidavits, exhibits and a ‘key police disclosure’.

There doesn’t appear tio be a corresponding article by David Fisher this time so you’ll either have to read through them yourself or wait for some coverage from someone else who has.

Three years since Dotcom raid

It’s been three years since the raid on Kim Dotcom on 20 January 2012.

Ars Technica marks the date and summarises progress (or lack therof):

Why Kim Dotcom hasn’t been extradited 3 years after the US smashed Megaupload

On January 20, 2012, New Zealand authorities raided Dotcom’s mansion, complete with two helicopters, as part of the American-led global shutdown of his Hong Kong-based file sharing company.

An extradition hearing is set for June 2015. Based on history, don’t hold your breath.

It’s not a bad summary but curiously they don’t say much about Dotcom’s lawyers quitting the case late last year.

Wikipedia’s summary of the Megaupload legal case

And going back into Dotcom’s past: Die Welt on Kim Schmitz/Dotcom

Hager, journalism and hacking

There’s been an interesting (long) discussion about the raid on Nickey Hager’s home and it’s implications for journalism and democracy at Public Address – Doing over the witness.

There’s been another post and discussion at Kiwiblog – Don’t believe the spin.

I got involved in an exchange there with Bart, who said:

Nookin, the core of my argument is this: I believe the freedom of the press (I include any form of media here) is far more important for a healthy democracy than the prosecution of a single crime of hacking a computer. The chilling effect that this sort of action has on journalists is not something that we should be willing to accept, regardless of whether you’re on the “left” or “right” side of the fence.

I responded to:

I believe the freedom of the press (I include any form of media here) is far more important for a healthy democracy than the prosecution of a single crime of hacking a computer.

How important is privacy of information to you? How important is a right to privacy and security of personal information in a democracy?

Should hacking be encouraged by journalists to score a good scoop?

Bart returned:

Privacy is critical to a well-functioning democracy. I hope that you will be an advocate for limiting the government’s powers when JK looks at reviewing the SIS legislation.

I have no problem with the police finding and prosecuting the hacker – and they should use all reasonable legal means to do so.

However, raiding a journalist’s house has an unreasonably negative impact on journalists – who wants to expose their family to searches and seizure of their personal belongings for doing their job? Is it reasonable to expect a journalist to take on that kind of personal price because their informants may have done something illegal? Would you expect your home to be searched as a result of working hard at your job?

Perhaps Nicky Hager shouldn’t have accepted the offer of the emails on ethical grounds, but that is a separate issue. I’m not aware of Nicky himself being charged with committing a crime in this case.

I’m an advocate for trying to get the best balance of privacy versus security. I think the Government’s powers should be limited and have effective oversight, but they should also have the power to deal with crime and prevent physical and cyber terrorism.

The Government has just made a change that helps spread responsibilities by giving the Attorney General operational responsibility for the GCSB and SIS with the Prime Minister having overall responsibility. That’s a move in the right direction.

There’s far more surveillance at a local level with security cameras proliferating. There’s potential dangers with them but if a security camera identified the perpetrators of the alleged rape of a New Zealand women in Sydney who would complain?

I think it’s critical to a well-functioning democracy that hacking doesn’t become an acceptable norm. That would take dirty politics to a very troubling new level, wouldn’t it?

And anyone active online subjects themselves to extensive public scrutiny and commercial surveillance and they generally seem to accept that.

However, raiding a journalist’s house has an unreasonably negative impact on journalists – who wants to expose their family to searches and seizure of their personal belongings for doing their job?

I have concerns about the need and nature of the raid and strongly support journalists being allowed to do their jobs without legal or police threats.

However Nicky Hager is not a normal journalist.

He colluded with a hacker knowing the information he was supplied with was illegally obtained.

He deemed that the material was not of sufficient public interest to publish it immediately.

Instead he took the time to collate selected exerts in a book and use the book to try and have maximum effect on an election – he decided that what was revealed was serious enough to try and decide the outcome of an election. Did that contribute to “a well-functioning democracy”?

Hager also appears to have worked in his investigation with fairly far left bloggers (Bradbury and Prentice) who have longstanding and very public grudges against Cameron Slater, while he didn’t attempt to get the other side of the story before publication. That is not good balanced journalism.

He wrote a book as a political activist more than as a journalist.

Hager has admitted he made mistakes despite many people claiming he can do no wrong.

The main premise of Hager’s book remains unproven – the degree of involvement of John Key and the National Government in ‘dirty politics’. Was Jason Ede acting on instructions from the top? Or was he acting over the top and out of control?

I’m not aware of Nicky himself being charged with committing a crime in this case.

He hasn’t been charged with any crime, yet.

But I think it’s valid – actually it’s very important – to examine and question his journalistic versus political activist balance in this. And his motivation. And the motivation of the hacker or hackers, and the others who have been involved in this.

And isn’t it also fair enough to question whether Hager has committed a crime? It’s possible he was involved in the hacking, involved with crimes. We shouldn’t just take his word that he had nothing to do with the hacking should we? The police in particular shouldn’t just take his word should they?

The police should investigate this thoroughly shouldn’t they? Not just take the word of Hager’s blogger supporters?

I haven’t seen any evidence of it but what if Hager was complicit in the hacking?

What if Hager has been used by political activists who deliberately hacked a foe to practice politics at least as dirty as their targets?

I wouldn’t like to see a precedent set for approving of and encouraging political hacking because one side of politics deems it’s public interest to oust the current Government.

Police explain Hager raid

There have been a lot of claims and assertions about the police raid on Nicky Hager’s house last Thursday, based on very little information other than a statement from Hager.

Questions have been asked about why it would take five detectives ten hours to search a house.

The only police report on this is relayed from here from an a Press report (which doesn’t appear to be online):

Police explain Hager Raid

Police have defended the 10 hours it took to search author Nicky Hager’s home, saying it was because they respected his claim to journalistic privilege.
…This necessitated a process where all items had to be catalogued, secured, sealed and countersigned by both police and Mr Hager’s lawyer prior to being removed from the address. The exhibits were delivered into the custody of the Auckland High Court pending determination of the privilege claim.

(Thanks Ian Dalziel)

Here’s more detail from Stuff:

In a statement, police confirmed they had “removed computers and related items under search warrant from a Wellington address as part of [an] ongoing investigation into alleged hacking of Mr [Cameron] Slater’s emails”.

The evening they defended the 10 hours it took to carry out the search, saying it was because they respected his claim to journalistic privilege.

Police said the time taken to search Hager’s home was due to police respecting his claim of privilege.

“This necessitated a process where all items had to be catalogued, secured, sealed and countersigned by both police and Mr Hager’s lawyer prior to them being removed from the address.

“The exhibits were delivered into the custody of the Auckland High Court pending determination of the privilege claim. As the matter is now before the courts Police is unable to comment further.”

Hager vows to protect hacker’s ID