Inspired by the raid on Michael Cohen’s home and office. Seems like he would have started shredding and burning long before now, but he might also want to save stuff for leverage.
So that a factual answer is possible, assume that everything that follows deals with US citizens who live and work in Washington, D.C. I take it as a given that if you receive a subpoena to produce documents (including tapes or videos), or a court order to not destroy such documents, it’s a crime to destroy them.
Is it a crime to destroy evidence if you are informed that you are a target or subject in a criminal investigation, but have received no subpoenas or court orders?
Is it a crime to destroy evidence if you have not been informed that you are of any interest in any criminal investigation, but have good reason to believe that you may be soon?
Is it a crime to destroy evidence if you have no good reason to believe that you will ever be a target or subject of a criminal investigation, but you may have information germane to an investigation? Specifically:
a) if you recently got hired to work in the Trump White House, with rumors of indictments or impeachments flying around, would it be illegal to destroy your daily notes, emails, and phone records every night, just as part of your routine?
b) same question if you recently got hired to work in a normal White House, with nobody being investigated.
Is there a different standard for lawyers, i.e. is a lawyer expected to know more about what constitutes evidence, and when it would be illegal to destroy it, than a non-lawyer?
The Federal Records Act governs the maintenance of records for federal employees, regardless of whether there’s an investigation, (and it was amended recently to include electronic records). Otherwise, the criminality of destroying evidence depends a lot on the motivation for doing it, and whether the material concerned is something that reasonably could be expected to serve as evidence.
Michael Cohen isn’t a federal employee. He is Donald Trump’s personal attorney. Rules applicable to federal attorneys don’t apply.
The relevant obstruction statute requires knowing the intent of the person.
18 USC 1512(c) says
So the document destruction must be “corrupt,” which implies intent and requires knowing why the person destroyed the records. It’s easier to infer that a person destroyed the records if he knows the feds are already interested in the documents. It’s less easy to infer his intent if he has no reason to suspect the records are evidence of any crime at all. Your scenarios mostly fall in the ambiguous middle. Mr. Cohen doesn’t have to be a target or subject of the investigation to be subject to penalties for violating it. He merely has to have the intent to obstruct the proceedings even if those proceedings aren’t targeting him. For example, I could violate this statute easily if I destroyed records that implicated my hypothetical son in some crime even if I was perfectly innocent of my son’s crime.
Another question is whether the FBI investigation is an “official proceeding.” This is also subject to some interpretation but, in short, a person can violate the statute even if the court proceedings have not yet begun if the person destroyed the evidence with the intention of interfering with court or other official proceedings that he or she anticipated. See U.S. v. Scaife (here: 749 F2d 338 United States v. Scaife | OpenJurist).
I don’t think the rules are any different for a lawyer but lawyers are probably less likely to destroy those records than other people. The lawyer may need them for professional purposes and they are generally protected from disclosure by attorney-client and attorney work product privileges. The Michael Cohen raid is a pretty rare case where the privilege is being called into question.
Attorney-clinent privilege does not apply in the case of a conspiracy to commit or conceal an active crime, e.g. if the attorney knows his client is in the act of committing a crime or is participating in the crime or conspiracy. Hence the trope of asking a lawyer to step out of the room while discussing a crime with compatriots, although any attorney with any sense of ethics or a desire to protect his or her license would recuse themselves if they actually knew their client to be actively engaging in a crime whether they were a direct party or not.
In the case of Michael Cohen and the payment to Stephanie Clifford (“Stormy Daniels”), however, Cohen has thrown an additional bone to prosecutors; by paying the $130k out of his own pocket and denying his client’s knowledge or direction, the action is (probably) no longer covered by attorney-client privilege since it occurred with out his ostensibily client’s cognizance. Who knows what else Cohen is being investigated for, but given that he is a worse lawyer than Barry Zuckerkorn it would not shock me if he has violated privilege protections all over the place.
It lacked citations. Where/when does a defense attorney swear he is going to write down the truth, the whole truth, and nothing but the truth in his notes? He isn’t claiming it is the truth. They raid his office and take his notes. Where is it written they must all be complete and truthful? Is he obligated to explain his notes, and to what degree? Keep in mind we are supposing he does the omission and fabrication before he is told they want his notes. I can see how if he does it AFTER it would be a problem. What if it is before his client is even a suspect?