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:
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.”