Donald Trump twitted “Attorney-client privilege is dead.” It was no less inane than any other Trump twit, but buried within the typically ignorant grasp of law is a matter of grave concern for lawyers and clients. The search of his lawyer’s office fell within the long-recognized crime/fraud exception, but the cheering and jeering of the groundlings should be disturbing.
Never before has the sanctity of the attorney/client privilege been so thrillingly dismissed. Even if, as is almost assuredly the case, there was exceptionally good cause to breach the privilege, it should never be taken lightly. It should never be treated as a facile resort, founded on mere probable cause.
Does Michael Cohen have other clients? What of their privilege? Does Cohen have privileged communications of his prime client that have no bearing on the evidence for which the warrants were issued? These privileged communications may well be seen as the feds parse Cohen’s papers, computers, for what they’re authorized to search for by the warrant. They may get what they came for, but they will get a whole lot more in the process. What if it’s not Trump that comes into plain view, but someone else? What if that someone else is you? Oops.
There should be talking heads telling Rachel this is not a gleeful moment, a thrill at her nightly impending impeachment finally having a slight potential to come to fruition. Lawyers should be reminding people, pundits and groundlings alike, that this is an extreme measure, a dangerous measure, that may be necessary but is nothing to applaud. Instead, crickets.
The reason why is pure Trump. There is a massive disconnect on the surface, since this warrant didn’t issue from Robert Mueller’s merry band, but the Southern District of New York. Key here is that if it bore upon special counsel’s investigatory mandate, Mueller would have been the guy kicking in Michael Cohen’s door. He wasn’t. So this isn’t about Trump at all, technically.
But of course, it’s all about Trump. It’s just outside Mueller’s mandate, so Cohen is the proxy, the pretext for a search about Trump. Remember how much you hate Whren when the stop is for the broken taillight that begets the dog sniff and its subsequent search for drugs? This search of Cohen’s papers isn’t quite the same, but it isn’t entirely different, either. Let’s be real, but for Trump, nobody would give a hoot about some faux tough-guy named Michael Cohen. Cohen’s a nobody on his own.
Ken White connected the dots in his New York Times op-ed.*
But consider this: The Stormy Daniels payout may be outside the scope of the Russia investigation, but it’s possible that Mr. Cohen’s records are full of materials that are squarely within that scope. And the law is clear: If investigators executing a lawful warrant seize evidence of additional crimes, they may use that evidence. Thus Mr. Trump and Mr. Cohen, with their catastrophically clumsy handling of the Daniels affair, may have handed Mr. Mueller devastating evidence.
Will they employ a taint team to create a Chinese wall between the evidence sought under the search warrant, whatever that may turn out to be, and any other evidence that relates to Trump and Russia, evidence that not only falls within Mueller’s mandate but could make a case that, as of now, Mueller has been unable to make?
Put aside how much you despise Darth Cheeto, and consider what this means to privilege. There is no warrant issued to search Cohen’s papers and effects for Russia-related evidence against the president.
Assuming it exists, it is fully protected by attorney/client privilege. But Cohen, the lawyer, drove his computer with a broken taillight, and they’ve pulled him over, had the doggie poke around, and are now, lawfully because it only takes probable cause, going to search every page for evidence of Stormy stuff. And if they happen, purely by chance, to stumble upon naked pictures of Trump and Putin, well…
Riffing off Ken’s op-ed, the Times offers an editorial largely rationalizing why this is nothing to be concerned about, but a totally lawful exercise of government authority.
Mr. Trump also railed against the authorities who, he said, “broke into” Mr. Cohen’s office. “Attorney-client privilege is dead!” the president tweeted early Tuesday morning, during what was presumably his executive time. He was wrong. The privilege is one of the most sacrosanct in the American legal system, but it does not protect communications in furtherance of a crime. Anyway, one might ask, if this is all a big witch hunt and Mr. Trump has nothing illegal or untoward to hide, why does he care about the privilege in the first place?
What’s remarkably telling here is that nowhere does the Times consider the fact that its defense of the search warrant has nothing to do with any need to unearth the crimes of Michael Cohen. They’re not even pretending this is about Cohen. Remember, breaching the “sacrosanct” attorney/client privilege is only permissible because of the crime/fraud exception, which is about the attorney’s facilitation of a crime, not the client’s. The client’s commission of a crime is what privilege protects in the first place.
Assuming, as I do, that the warrant was properly issued, albeit under the extremely low burden of probable cause, it may serve to reveal other evidence in plain view by sheer kismet as a collateral benefit. The attorney/client privilege may not be dead, but this is hardly its finest hour, either. Lawyers for the hated better make sure they aren’t driving around with a broken taillight.
Update: David Cole, legal director of the ACLU, has now stood up for the right of prosecutors to search lawyers.
But we also believe in the rule of law as an essential foundation for civil liberties and civil rights. And perhaps the first principle of the rule of law is that no one – not even the president, let alone his lawyer – is above the law. And no one, not even the president, can exploit the attorney-client privilege to engage in crime or fraud.
Can you hear the strains of the Battle Hymn of the Republic playing in the background?
But what is clear is that prosecutors had to overcome high hurdles [like probable cause?] to obtain the search warrant. That the warrant was issued is not a sign that the attorney-client privilege is dead. It is, on the contrary, a sign that the rule of law is alive.
So maybe we should do away with that nasty suppression of evidence remedy that lets murderers walk, because no one is above the law? I never thought I would see the day when the ACLU was such craven hypocritical badge-lickers.
*Yes, Ken has an op-ed in the New York Times. I do not. I’m both proud and very jealous that the Times went to Ken, finally seeking the thoughts of someone who knows what he’s talking about. Well done, Ken. Well done, NYT. Sucks to be me.