Tuesday, April 10, 2018

Michael Cohen's Attorney Speaks - No Need For a Search

Playing the press has become an important component in handling a white collar case.  In the past, one might remain silent and let the case be resolved prior to making any statements, especially press-related statements.  With the speed of the internet, it often becomes necessary for attorneys to respond to allegations to provide a level playing field.  It, therefore, was no surprise to see Michael Cohen's attorney, Stephen M. Ryan, issuing a press release. (see here).  He calls the US Attorneys Office "completely inappropriate and unnecessary."  He argues that his client "has cooperated completely with all government entities, including providing thousands of non-privileged documents to the Congress and sitting for depositions under oath."

It is interesting to see the use of a search here as opposed to a subpoena.  The downside of the government using a search is that it is more expensive, not secret like the grand jury process, requires probable cause, and if the probable cause is later found lacking the entire search can be invalidated. The upsides of a search are surprise, getting the material immediately without having to wait for the grand jury, obtaining items that might be found in plain view, and also receiving possible incriminating statements from individuals while performing the search, this latter one mostly applicable in the corporate or business context. One can argue obstruction of justice either way.  On one hand you get the items in question before there is any possibility of them being destroyed.  On the other hand if documents were destroyed, prosecutors would have a "short-cut offense" to charge of obstruction of justice.

In my Article, White Collar Shortcuts, forthcoming in the Illinois Law Review, I note how prosecutors are using investigative and charging "short-cuts" more frequently in white collar cases.  Whether the use of a search warrant was a "short-cut" here, remains to be seen.  

(esp)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2018/04/michael-cohens-attorney-speaks-no-need-for-a-search.html

Defense Counsel, Investigations, Obstruction, Prosecutors, Searches | Permalink

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