The President is screaming that the search warrant executed on the offices Michael Cohen, his longtime attorney, is an attack on our country and a violation of the attorney-client privilege. First of all, 9-11 was an attack on our country; this search is just one step in a long criminal investigation. But Presidential histrionics aside, is it a violation of the attorney-client privilege? The likely answer is “No.” Special Counsel Robert Mueller forwarded information to the Department of Justice that was outside the purview of his authority to investigate for DOJ to decide what to do with it. DOJ assigned it to Southern District United States Attorney Geoffrey S. Berman, who was appointed by President Trump to replace Preet Bharara. Berman is the one who signed off on the search warrant of Cohen’s offices. That means three things:
(1) It is wrong to attach this to Mueller as there were two steps after Mueller before the issuance of the warrant: DOJ review and Berman’s signing off on it;
(2) There had to be strong evidence of criminality by Cohen or a connection between Cohen and criminality;
(3) I would not want to be Michael Cohen right now.
What’s important to keep in mind is that the DOJ and US Attorney’s office have often gone after lawyers who they believe are associated with a criminal enterprise. The DOJ has successfully investigated and even prosecuted attorneys who they feel are part and parcel of criminal organizations. Lawyers for Mafia defendants; biker gangs; and narcotics rings face this type of scrutiny on a regular basis. Noted criminal defense attorney Lynne Stewart was prosecuted, convicted and disbarred for helping Sheik Abdel Rahman’s terrorist organization exchange information with the Sheik while he was incarcerated pending trial. It’s called the “Crime-Fraud” exception to the attorney-client privilege.
The crime-fraud exception applies if:
The client was in the process of committing or intended to commit a crime or fraudulent act, and
The client communicated with the lawyer with intent to further the crime or fraud, or to cover it up
In some instances, the crime-fraud exception isn’t limited to crimes and fraud; it also applies where the client’s object is a civil tort or other wrong. For example, the exception could apply if a landlord sought advice about unlawfully evicting a tenant. Whether the crime-fraud exception applies depends on the content and context of the communication. The exception covers communications about a variety of crimes and frauds, including (to name just a few):
“suborning perjury” (asking an attorney to present testimony they knows is false)
destroying or concealing evidence
witness tampering, and
concealing income or assets.
Because the attorney-client privilege belongs to the client, it is the client’s intent that determines whether the exception applies. Most courts will apply the exception even if the attorney had no knowledge of, and didn’t participate in, the actual crime or fraud. That makes this search on Cohen interesting because it may indicate a belief by Mueller and the DOJ that Cohen’s client (then-Candidate Trump) may have known or participated in something wrong and may have roped Cohen into it or tried to have Cohen cover it up.
But the search could also be seeking documents that are simply not covered by the attorney privilege. The attorney-client privilege is often strictly confined to its narrowest possible limits by courts, which often conclude that communications are privileged only if the statements do in fact reveal, directly or indirectly, the substance of a confidential communication by a client or the legal advice provided by the attorney.
For example, courts have concluded that the following are not protected by the attorney-client privilege:
The underlying facts relevant to a dispute, even if relayed in the course of a communication with counsel;
The subjects discussed with counsel;
Communications made by an agent of the client to the attorney concerning the client’s business;
Communications from attorney to the client relating the date, place, and time of a court appearance or deposition;
Communications from attorney to the client relaying a court ruling, filing of a pleading, or discovery responses or requests;
Communications regarding attorneys’ fees and a client’s identity; and
Communications between an attorney and a third party at a client’s request.
Also, if a third party was copied on the communication who is not also in an attorney-client relationship with the attorney, then the communication is not privileged. So there could be lots of material in Cohen’s possession that is not protected by the privilege.
The DOJ and the US Attorney’s Office did not do this lightly, I am sure. And because this is not anything ground-breaking, the DOJ Manual covers how searches of attorney’s offices are to be done. They have a very strict protocol. Section 9-13.420 of the DOJ Manual is entitled “Searches of Premises of Subject Attorneys.” This section covers attorneys who, like Cohen, are the subject of the investigation; Section 9-19.220 governs searches of attorneys who are disinterested third parties but who may have material relevant to an investigation. 9-13.420 sets out a very specific procedure for searching a subject attorney’s premises in order to safeguard privileged material and limit the scope of the search. It starts out by acknowledging the delicate nature of the search:
There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients. Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search.
Here are some of the guidelines set forth to protect the privilege:
A. The DOJ must see if any less-intrusive alternative would work;
B. The express approval of the United States Attorney or pertinent Assistant Attorney General must be obtained first. The manual advises that ordinarily, “authorization of an application for such a search warrant is appropriate when there is a strong need for the information or material and less intrusive means have been considered and rejected.” (It ain’t good for Trump or Cohen that US Attorney Berman determined there is strong need for the search.)
C. In addition to obtaining approval from the United States Attorney or the pertinent Assistant Attorney General, and before seeking judicial authorization for the search warrant, the federal prosecutor must consult with the Criminal Division of the DOJ. The manual requires that prior to the warrant being sought, a form be submitted to the Criminal Division of DOJ “containing relevant information about the proposed search along with a draft copy of the proposed search warrant, affidavit in support thereof, and any special instructions to the searching agents regarding search procedures and procedures to be followed to ensure that the prosecution team is not “tainted” by any privileged material inadvertently seized during the search.”
D. Prosecutors are instructed that “in all cases, a prosecutor must employ adequate precautions to ensure that the materials are reviewed for privilege claims and that any privileged documents are returned to the attorney from whom they were seized.”
E. The search warrant should be drawn as specifically as possible, consistent with the requirements of the investigation, to minimize the need to search and review privileged material to which no exception applies.
F. To protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a “privilege team” should be designated, consisting of agents and lawyers not involved in the underlying investigation. Instructions should be given and thoroughly discussed with the privilege team prior to the search. The instructions should set forth procedures designed to minimize the intrusion into privileged material, and should ensure that the privilege team does not disclose any information to the investigation/prosecution team unless and until so instructed by the attorney in charge of the privilege team. Privilege team lawyers should be available either on or off-site, to advise the agents during the course of the search, but should not participate in the search itself.
G. A system of review of the material gathered pursuant to the warrant must be submitted to DOJ prior to the issuance of the warrant and the review protocol should be attached to the application for the warrant so that the reviewing judge can see the steps to be taken to protect the privilege.
So, the Cohen search warrant likely passed through all these steps. While many senior DOJ and Assistant US Attorneys have left (or fled) the office under the Trump Administration, I am certain there are many still there with experience in properly crafting and executing search warrants on attorneys. What this all means is that the hysteria from the President and his supporters about how this step in the Cohen investigation attacks our country’s core principles is just a lot of hot air without substance. Hopefully, this incident will make the public more aware of the breadth and scope of the DOJ’s and US Attorney’s Office’s power and the limits on the attorney-client privilege. I have written here previously about how the Mueller investigation has demonstrated the purpose and scope of the Fourth Amendment and the purpose and scope of the Fifth Amendment So I hope people are starting to realize how serious and dangerous it is to be the subject of a Federal criminal investigation.
I think the President is certainly starting to get that message.
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