In the independent counsel’s investigation of President Trump, his lawyer’s office was recently searched. It is a widely known story. I don’t think I need a cite.
But this brings up some troubling constitutional Implications. Or so I have heard from some very good sources.
IANAL. And I don’t assume that I know as much as some of them do. But I do have a very good law dictionary and other books. And I may know a little more than the average person. I’m serious. It is a fascinating subject. And I have explored it in various ways, and from time to time.
The attorney-client privilege is ABSOLUTE, for things done in the past. (Things you propose to do in the future is a little more of a gray area, but probably isn’t protected by the Constitution, in any event.) This right extends to the Fourth Amendment, naturally. Because if finding what you said to your lawyer in confidence was as simple as searching his office, what would even be the point of having this right in the first place?
So why then were the feds able to search Trump’s attorney’s office so easily? And do we even have an attorney-client privilege in the United States anymore?
People think we have an unfettered right to an abortion in this country. But the truth is, the SCOTUS has been chipping away at this right for so long, it is all but a moot point. Is that what happened to the attorney-client privilege/right?
No, it is absolute for anything done in the past. I have read that in numerous places, and according to the SCOTUS, the right comes from the Constitution (see the cite I gave too).
There are important exceptions though. If your lawyer is effectively being forced to take part in a crime, the privilege is lost.
Then there is proposed future. The Constitution doesn’t cover this. But the lawyer’s code of conduct may.
My law dictionary (which was written 20 years ago–so sorry no cite), says something interesting. The uniform code of conduct says the attorney must only notify the authorities if serious bodily injury is imminent. So if you tell the guy you are going to smoke a joint, no problem. But murder your wife, problem.
And let me apologize in advance for any other people I double post with now;):).
Small correction. I believe that, while it was Mueller who alerted the FBI to a possible crime, the search was not made per Mueller’s Russia investigation.
To me this implies that Mueller found evidence of some criminal act outside his purview as an independent counsel. He then passed that along to people at the FBI who could or could not choose to act on it. They evidently did so. Whether that ends up leading to charges is again outside of Mueller’s purview.
So to say it occurred as a part of the Independent Counsel’s investigation is innaccurate at best.
They weren’t able to do it “so easily”. It was in fact very difficult, requiring approval from multiple high places, and even after the search, they have to have people whose sole involvement is to sort through and figure out what’s acceptable for the other investigators.
Not to mention that if they were looking for information related to the payment to Stephanie Clifford it would not be covered, since Cohen has stated multiple times it was done without Trump’s knowledge, and thus was not for Trump as a client but only as a friend, and so it would not be covered.
I’ve seen talking heads call this a rookie mistake.
I think that this is probably the part that JimB was focusing on
But that to me suggests in the past tense relative to the time of the consultation with the attorney, not relative to the time the Feds start looking through his stuff.
So Trump confessing to Cohen he had an affair with a porn Star and whitewashed 100 million in Russian mafia money, would be covered by client privilege.
But if Trump went on to say that he wanted Cohen to hire someone to lean on the Pornstar, and rejigger his books to hide the mafia money, that would not be privileged and could be used against him even if it wasn’t uncovered for several years.
Which contradicts what he is saying about absolute privilege. And I agree with what you said in the parts of your post I didn’t quote, along with Voyager’s point that it’s absurd to have a client invoke a privilege on things he said he never discussed with his lawyer.
CNN this afternoon was making the point that it seems unclear if Cohen was serving as Trump’s lawyer or just as his fix it man.
Comey’s book compares the Trump administration to the Mafia, something Comey knows about. Using a lawyer to hush people is right along those lines.
Imagine that Aaron is Ben’s lawyer. Ben decides he wants to commit the crime of mopery, and he says to Aaron, “Hey, if you help me commit some mopery, I’ll split the proceeds with you.”
Aaron uses his legal knowledge to help Ben mope. Naturally, his files contain evidence of the mopery.
Now, in your understanding of the privilege, could the government search Aaron’s office if they had probable cause to believe the story unfolded thusly?
Aaron objects to the search. He piously claims that the only things his files have are privileged information. The government has probable cause to believe this is not true. Are they stymied?
The answer is no. There are procedures that can be used when the government believes a lawyer’s files contain evidence of a crime, and that this evidence is unshielded by the attorney-client or work product privileges.
One such procedure is the creation of a firewall in the prosecutor’s office. The prosecutor who reviews the material seized from the lawyer cannot communicate with the prosecutor who is pursuing the charges. Both lawyers submit affidavits swearing that they did not exchange information about what, if anything, was in the files and was subject to the privilege. Only information that is NOT privileged is turned over to the prosecuting team.
A more stringent procedure is for the court to step in. The judge appoints a trusted neutral lawyer, not associated with the prosecution or the accused, to review the material. This person is known as a “special master.”
These type of protections preserve the privilege but allow the government to uncover fruits of a crime that was committed with the assistance of a lawyer, an act that destroys the privilege.
There was nothing “easy” about it. Getting a warrant to search an attorney’s office is a high bar to get over and the warrant is not granted lightly.
When that attorney is the president of the United States’ attorney you had better believe the bar is sky high if for no other reason than the people involved know the order will be scrutinized microscopically by everyone (ok…not “everyone” but lots and lots and lots of people including a few battalions of attorneys).
Now consider the process that was needed:
Also, all the parties who signed off on it are (IIRC) republicans (one who was appointed by Trump) so this is not a democrat witch hunt.
They would have argued:
[ul]
[li]Probable cause to believe Cohen committed a crime[/li][li]That there was risk that evidence would be destroyed[/li][li]and[/li][li]That Cohen is not in fact Trump’s personal attorney, but rather his bag man who happens to be an attorney[/li][/ul]
:)