The Hill
BY JORDAN FABIAN, LYDIA WHEELER AND BROOKE SEIPEL
05/03/18 01:14 PM EDT
Federal investigators tapped the phone lines of President Trump's personal lawyer, Michael Cohen, according to a bombshell report by NBC News. The report, citing one source with direct knowledge, said at least one call between the White House and a phone line associated with Cohen was intercepted.
The wiretap could dramatically raise the legal stakes for Trump if any potential conversations with his longtime lawyer were swept up by investigators, who are conducting a wide-ranging criminal probe into Cohen’s business activities.
According to NBC News, it is unclear how long the phone had been wiretapped or when it was authorized, but sources tell the network that it was in place leading up to an FBI raid on Cohen last month.
Trump was infuriated by that raid, accusing the Justice Department of carrying out a “witch hunt” and an “attack on our country” while asserting the FBI "broke in" to Cohen’s home, office, hotel room and safe deposit box.
The president reportedly called Cohen to check in after the raid. Former New York City Mayor Rudy Giuliani, Trump’s newest personal lawyer, learned of the call days later and warned Trump not to call Cohen again because he feared he could be under surveillance, according to two sources who spoke to NBC.
Giuliani reacted angrily to the new report during an interview with The Washington Post.
“It’s not appropriate,” he said. “I mean, he’s a lawyer. You mean, I call up my lawyer and the government is wiretapping him? That’s pretty damn — I mean, they’ve already eviscerated the attorney-client privilege. This would make a mockery of it.”
Giuliani could not confirm independently whether Cohen was wiretapped, according to Post reporter Robert Costa, who spoke with the ex-mayor.
Glen Kopp, a former assistant U.S. attorney for the Southern District of New York, said federal prosecutors have to jump through several hoops to get the Department of Justice and a federal judge to sign off on a wiretap.
Kopp, who is now a partner in the New York office of the law firm Mayer Brown, said prosecutors need proof of a "dirty" call within the last 21 days that shows the phone is being used in the furtherance of a crime.
Then, he said, prosecutors would have to show the target phone was used to contact at least one other person who is potentially involved in a crime.
"It’s a forward-looking procedure and criminal investigative tool," he said.
"It's difficult it get because, on top of that, one of the requirements is that you have to establish there's no other, less investigative means of obtaining this information or evidence."
To get proof of a dirty call to obtain authorization for a wire tap, Kopp said, federal prosecutors often rely on an undercover or confidential source.
The wiretap report comes at a time when Trump’s legal troubles are deepening, causing the president to reshuffle his team of attorneys in order to push back harder against special counsel Robert Mueller, who is leading the Russia investigation, and the Justice Department.
Cohen is under investigation for paying adult film-star Stormy Daniels $130,000 ahead of the 2016 presidential election to stay silent about her alleged affair with Trump. The investigation was triggered, in part, by a referral from Mueller's team.
Giuliani said on Fox News Wednesday night that Trump reimbursed Cohen for the payment, a claim he believed could limit the president’s legal exposure in the probe but also contradicted past claims by Trump that he knew nothing about the arrangement.
Citing two sources, NBC reported Giuliani told Trump that Cohen is likely to flip on him and cooperate with investigators. But Trump disagreed, saying that Cohen has been loyal to him for years.
"Michael is a businessman for his own account/lawyer who I have always liked & respected," Trump tweeted in late April. "Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media!"
Daniels’s attorney, Michael Avenatti, told MSNBC Thursday afternoon that the wiretaps could help his client's case against the president.
“I don’t think we’re going to find out that this was confined just to email or voice wiretaps,” he said
“My understanding is that they were also wiretapping text message communications for the weeks leading up the FBI raids. I also think that ultimately it will be disclosed that during these wiretaps the FBI learned of means by which Michael Cohen and others were going to destroy or spoliate evidence or documentation.”
Avenatti said that evidence likely served as the basis for the warrant prosecutors obtained to search Cohen’s home office and hotel room.
“There’s no question in my mind Michael Cohen will be indicted for serious federal crimes relating likely to the $130,000 payment and other things,” he said. “And I think this increases the chances of what I said previously. I don’t think this president is going to serve out his term.”
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