Is Attorney-Client Privilege Dead?

This morning, at 4:07 AM, President Trump tweeted that “attorney–client privilege is dead!” in reference to the FBI’s Monday morning raid on the office of the president’s longtime lawyer Michael Cohen.

Naturally, as with many political stories these days, many questions arise.

Why did the FBI raid Cohen’s office? What is attorney-client privilege? Is it dead!?

Let’s start from the top.

The Monday Morning Raid

According to a New York Times article from yesterday, the FBI “raided the Rockefeller Center office and Park Avenue hotel room of President Trump’s longtime personal lawyer, Michael D. Cohen, on Monday morning, seizing business records, emails and documents related to several topics, including a payment to a pornographic film actress” and payments made by American Media Inc., The Enquirer’s parent company, to a former playboy model.

Both women who received the payments have alleged that they had sexual affairs with the president. The latter is Karen McDougal “who claims she carried on a nearly yearlong affair with Mr. Trump shortly after the birth of his son in 2006,” and reportedly received $150,000 from a company, “whose chief executive is a friend of Mr. Trump’s.”

The pornographic film actress in question is Stormy Daniels. Daniels recently joined Anderson Cooper on 60 minutes to publicize what her and her lawyer are claiming to be “thuggish behavior” from the president, Cohen, and possible other affiliates of theirs. Her story can be boiled down into an alleged sexual encounter with the president, a non-disclosure agreement (NDA), a $130,000 payment to Daniels from Cohen, and allegedly threatening means of enforcing the NDA.

Further reporting goes on to quote Cohen’s lawyer in this matter as stating that “the U.S. attorney’s office for the Southern District of New York executed a series of search warrants and seized the privileged communications between my client, Michael Cohen, and his clients.” Cohen’s lawyer also added that the raid was “in part, a referral by the office of special counsel, Robert Mueller.”

These matters serve as fodder for Trump’s critics in a variety of ways.

With regards to the McDougal payments, the money trail could have possibly led to/been influenced by Trump, and the timing of Cohen’s payment to Daniels could have been an illegal campaign contribution. As the report from the NYT points out, Cohen has stated that he paid Daniels $130,000 as part of the nondisclosure agreement “to secure her silence just days before the 2016 presidential election.” (emphasis added)

Trump has claimed that he was completely unaware of the payment at the time, and Cohen’s statements referring to the payment as having been made independent of Trump adhere to that line of reasoning. But Monday’s raid suggests that investigators may not be convinced.

Attorney-Client Privilege?

So what exactly does attorney-client privilege have to do with any of this?

Well, reports have stated that “investigators took Cohen’s computer, phone and personal financial records … [and] communications between Cohen and Trump.”

Under what is legally known as attorney-client privilege, communications between attorneys and their clients are suppose to be kept secret and undisclosed in the interest of permitting clients to being totally honest with their legal representatives.

While essential to our legal system, this privilege is not unconditional.

One major exception to this rule is what is known as the crime-fraud exception, which states that the attorney-client privilege “may be disregarded when the client’s communication to his attorney is in furtherance of a current or a planned crime or fraud.”

Thus, Trump runs into a legal dilemma if he knew about Cohen’s self-proclaimed individual payment to Daniels, since “that could constitute criminal conspiracy to violate campaign finance law,” and his communications with Cohen would thereby no longer be immune from disclosure.

Trump additionally runs into a practical problem if he did not know about Cohen’s payment as well. Again, Cohen has suggested that the payment was made in a manner that was entirely independent of his connection with the president. If this is the case, then it would theoretically be difficult to claim that communications pertaining to this matter are protected under attorney-client privilege, since these actions were thereby committed in Cohen’s personal, not professional, capacity, as it relates to the president.

Big Takeaways

There are a couple conflicting feelings that I have about this whole situation as it stands at this moment.

One the one hand, the likelihood of this raid being the result of entirely rogue “witch-hunting” actors seems hard to comprehend. Ken White at Reason breaks down the flaws in that line of reasoning with the following points:

1. According to Cohen’s own lawyer, the U.S. Attorney’s Office for the Southern District of New York (widely regarded within itself as being the most important and prestigious U.S. Attorney’s Office in the country) secured the search warrants for the FBI, based on a referral from Robert Mueller’s office. Assuming this report is correct, that means that a very mainstream U.S. Attorney’s Office — not just Special Counsel Robert Mueller’s office — thought that there was enough for a search warrant here.

2. Moreover, it’s not just that the office thought that there was enough for a search warrant. They thought there was enough for a search warrant of an attorney’s office for that attorney’s client communications. That’s a very fraught and extraordinary move that requires multiple levels of authorization within the Department of Justice. The U.S. Attorney’s Manual (USAM) — at Section 9–13.320 —contains the relevant policies and procedures.

In a similar vain, a former prosecutor from the Southern District of New York explained how this matter seems to break away from the anti-Mueller narrative that Trump is nevertheless quick to attach this situation to:

The Trump camp suggests that there is a sinister tag-team arrangement between the special counsel’s office and the SDNY (whose public-corruption chief, Andrew Goldstein, is now working on Mueller’s staff). But that is hard to square with the fact that Mueller did not need a cat’s paw: If he wanted to control the campaign-finance investigation, he could have done so by simply asking Deputy Attorney General Rod Rosenstein to expand his jurisdiction — similar to what Clinton independent counsel Kenneth Starr did when the Lewinsky scandal emerged in the midst of his unrelated Whitewater investigation.

In short, if Mueller wanted to take down Trump on this matter specifically, he could have just taken the lead on this issue by himself.

To perplex this line of reasoning even further, the head of the SDNY is not an Obama appointee, but rather Geoffrey Berman, a man who was appointed by Trump. However, Berman has reportedly been recused from the matter, and which assistant has replaced him has not yet been disclosed.

This is all to suggest that Trump’s tweet appears to be quite unfounded at this moment in time.

But, on the other hand, I do not believe that Trump’s most ardent critics are establishing their beliefs that he is finally finished on a flawless foundation either.

Campaign-finance contribution rules can involve harsh penalties for violators, such as imprisonment. However these rules have not recently been enforced against presidents in an incredibly ruthless manner. For example, in 2008, the Obama campaign was caught illegally hiding the sources of certain contributions and illegally accepting campaign donations “from contributors who had already given the legal maximum.”

Both actions involved quantities in the millions of dollars. His punishment? A $375,000 by the Federal Election Commission.

Of course, paying mistresses hush money is a different dilemma, but the finances involved are a fraction of the amounts of money involved in the 2008 violations. Thus, the cumbersome process that needed to have taken place in order for such an extensive raid to be carried out suggests that illegal contributions of such a relatively minuscule size are most likely not the bulk of what is being investigated here.

As stated at the beginning of this article, the NYT reported that there were several topics of interest governing which materials were seized from Cohen, and what those specific interests are will most likely only be revealed upon disclosure of the warrants and their applications.

In his analysis of this situation, the aforementioned former prosecutor rightly points out the plight of Paul Manafort, who was initially believed to have played a role specifically in alleged Trump-Russia collusion, but was ultimately indicted “on a wide array of felony charges.”

If I’m wrong on this prediction, then Trump may be right about his “witch-hunt” concerns; if I’m right, then the attorney most likely has much more to worry about than the client in this particular situation.

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