Attorney-client privilege isn’t dead — even if Trump says it is

 

The sweeping FBI raid on longtime Trump fixer Michael Cohen put the President in a tizzy Tuesday morning, prompting him to declare “Attorney-client privilege is dead!”

Agents reportedly seized communications between Cohen and the President as well as files related to the $130,000 hush agreement with adult film star Stormy Daniels.

Cohen has not been accused of wrongdoing, and reports indicate he’s being investigated for campaign finance violations and bank fraud.

Legal experts have noted Trump’s dead-on-arrival pronunciation of the storied protection might not be completely right.

“The key thing in terms of his (Trump’s) tweet is that privilege is an extremely important concept that is designed to protect lawyers and clients and their relationship,” said New York Law School Professor Rebecca Roiphe. “But it’s not boundless. Nobody says that everything that goes on in a lawyer’s office or between a lawyer and his client” is absolutely protected.

More on Trump's personal lawyer, Michael Cohen:

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Donald Trump's lawyer, Michael Cohen
U.S. President Donald Trump's personal lawyer Michael Cohen exits a hotel in New York City, U.S., April 11, 2018. REUTERS/Brendan McDermid
Michael Cohen, personal attorney for U.S. President Donald Trump, arrives to appear before Senate Intelligence Committee staff as the panel investigates alleged Russian interference in the 2016 U.S. presidential election, on Capitol Hill in Washington, U.S. September 19, 2017. REUTERS/Jonathan Ernst
U.S. President Donald Trump's personal lawyer Michael Cohen drives after leaving his hotel in New York City, U.S., April 11, 2018. REUTERS/Brendan McDermid

Attorney Michael Cohen arrives at Trump Tower for meetings with President-elect Donald Trump on December 16, 2016 in New York.

(BRYAN R. SMITH/AFP/Getty Images)

Michael Cohen, personal attorney for U.S. President Donald Trump, talks to reporters as he departs after meeting with Senate Intelligence Committee staff as the panel investigates alleged Russian interference in the 2016 U.S. presidential election, on Capitol Hill in Washington, U.S. September 19, 2017. REUTERS/Jonathan Ernst

Retired Lt. Gen. Michael Flynn, President-elect Donald Trump's choice for National Security Advisor, Michael Cohen, executive vice president of the Trump Organization and special counsel to Donald Trump, and former Texas Governor Rick Perry talk with each other in the lobby at Trump Tower, December 12, 2016 in New York City. President-elect Donald Trump and his transition team are in the process of filling cabinet and other high level positions for the new administration.

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UNITED STATES - SEPTEMBER 19: Michael Cohen, center, a personal attorney for President Trump, leaves Hart Building after his meeting with the Senate Intelligence Committee to discuss Russian interference in the 2016 election was postponed on September 19, 2017. (Photo By Tom Williams/CQ Roll Call)

Attorney Michael Cohen arrives to Trump Tower for meetings with President-elect Donald Trump on December 16, 2016 in New York.

(BRYAN R. SMITH/AFP/Getty Images)

Michael Cohen, President Donald Trump's personal attorney arrives with his attorney, Stephen M. Ryan to speak with reporters after meeting with Senate Intelligence Committee staff on Capitol Hill in Washington, U.S., September 19, 2017. REUTERS/Aaron P. Bernstein

Retired Lieutenant General Michael Flynn, White House national security adviser-designate, from left, Michael Cohen, executive vice president of the Trump Organization and special counsel to Donald Trump, and Rick Perry, former governor of Texas, speak in the lobby of Trump Tower in New York, U.S., on Monday, Dec. 12, 2016. Senate Majority Leader Mitch McConnell said he had the 'highest confidence' in the intelligence community, in sharp contrast to President-elect Donald Trump's attack on the CIA after reports it found that the Russian government tried to help him win the presidency.

(Albin Lohr-Jones/Pool via Bloomberg)

Michael Cohen, President Donald Trump's personal attorney, looks on as his attorney (not pictured) delivers a statement to reporters after meeting with Senate Intelligence Committee staff on Capitol Hill in Washington, U.S., September 19, 2017. REUTERS/Aaron P. Bernstein

Attorney Michael Cohen arrives to Trump Tower for meetings with President-elect Donald Trump on December 16, 2016 in New York.

(BRYAN R. SMITH/AFP/Getty Images)

UNITED STATES - SEPTEMBER 19: Michael Cohen, center, a personal attorney for President Trump, leaves Hart Building after his meeting with the Senate Intelligence Committee to discuss Russian interference in the 2016 election was postponed on September 19, 2017. (Photo By Tom Williams/CQ Roll Call)
U.S. President Donald Trump's personal lawyer Michael Cohen exits a hotel in New York City, U.S., April 11, 2018. REUTERS/Brendan McDermid
U.S. President Donald Trump's personal lawyer Michael Cohen is pictured leaving a restaurant in the Manhattan borough of New York City, New York, U.S., April 10, 2018. REUTERS/Amir Levy
Michael Cohen, President Donald Trump's personal attorney, arrives with his attorney, Stephen M. Ryan, on Capitol Hill in Washington, U.S., October 25, 2017. REUTERS/Aaron P. Bernstein
U.S. President Donald Trump's personal lawyer Michael Cohen is pictured arriving at his hotel in the Manhattan borough of New York City, New York, U.S., April 10, 2018. REUTERS/Amir Levy
Michael Cohen, personal attorney for U.S. President Donald Trump, departs after meeting with Senate Intelligence Committee staff as the panel investigates alleged Russian interference in the 2016 U.S. presidential election, on Capitol Hill in Washington, U.S., September 19, 2017. REUTERS/Jonathan Ernst
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Here are some key questions and answers about attorney-client privilege.

So, what is attorney-client privilege?

Communications between a lawyer and client are typically protected from entering into evidence if the attorney is called to testify.

But those communications have to be strictly legal advice on what a client can or cannot do, in order to build trust between the two parties.

So if a client texts his lawyer about buying a green jacket, that can be entered into evidence. But an email confessing to murder and asking for legal help cannot go into evidence.

When isn’t it covered?

The communications have to strictly be between the attorney and client.

Any third party attached to an email or present during a conversation can break the privilege, legal experts said. The typical exception is a secretary, who usually counts as an agent for one of the parties.

What’s ‘crime-fraud exception’ and why are lawyers tweeting about it?

A phrase floating around Legal Twitter after Trump’s outburst was “crime-fraud exception.”

“Long live the crime-fraud exception,” ex-U.S. Attorney Preet Bharara said in response to Trump’s tweet.

This is essentially the counterpoint that strips away attorney-client privilege, because a person uses a lawyer to commit the crime.

The client has to seek “not legal advice but help in committing a crime,” said Roiphe, a former Manhattan prosecutor.

An attorney doesn’t even have to know this is happening for the privilege to be broken, she added. A client could seek legal advice on how to abide by the rules — only to use that as a roadmap to skirt around the law.

“It’s a really tough call when it gets into that grey area where you’re basically asking your lawyer ‘What would happen if I destroyed these documents?’” she said.

Did the Justice Department violate attorney-client privilege?

The short answer is no.

U.S. Attorneys and the FBI have strict guidelines on when communications can be seized and how they can be reviewed.

Raiding a lawyer’s office is one of the last steps prosecutors are encouraged to take in obtaining information, according to the U.S. Attorney’s Manual.

Applying for a warrant on a lawyer’s files requires the U.S. attorney or assistant attorney general’s sign off.

And a magistrate judge needs to approve the warrant based on evidence laws may have been broken.

“You can thus assume there was A LOT of evidence in that warrant application,” Benjamin Wittes, a senior fellow at the left-leaning Brookings think tank, tweeted Tuesday morning. “You can also assume the magistrate in question reviewed it carefully. In other words, you can assume that the evidence more than amply supports the action taken yesterday.”

Can the DOJ use everything agents take in a raid?

Again, prosecutors can’t use everything.

“The basic rule is that the government may not deliberately seize, or review, attorney-client communications,” attorney Ken White wrote Monday on the Popehat legal blog after the Cohen raid.

Uncle Sam has to set up a rigorous review process to determine what’s privileged and what isn’t.

That could be up to a judge or an outside attorney to decide, or a walled-off legal team completely separate from the prosecution, legal experts said.

“Sometimes the reviewing team will only be identifying and protecting privileged material,” Popehat wrote. “Sometimes the reviewing team will be preparing to seek, or to implement, a court ruling that the documents are not privileged.”

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