The president has suggested that the Justice Department infringed on confidential communication with his lawyer. But exactly what communication between a lawyer and a client is privileged?
WASHINGTON — President Trump reacted furiously to the F. B. I. raid on Monday of the office and the hotel room of Michael D. Cohen, his longtime personal lawyer — suggesting that the Justice Department improperly intruded into confidential communications and declaring on Twitter on Tuesday that “attorney–client privilege is dead!”
The search related to bank fraud allegations, according to a person briefed on the investigation, although the details remain unclear. Mr. Cohen’s lawyer said that the raid resulted from a referral from Robert S. Mueller III, the special counsel leading the Trump-Russia investigation, but it was carried out by the office of Geoffrey S. Berman, the interim United States attorney for the Southern District of New York — suggesting its subject matter fell outside Mr. Mueller’s area of focus.
Here is what you need to know about the legal issues.
It means that a federal magistrate judge looked at the information investigators had already gathered and agreed that Mr. Cohen probably possessed additional evidence of a federal crime.
Notably, investigators also could have used a grand jury subpoena to order Mr. Cohen to turn over the materials they were pursuing, without seeking a judge’s advance permission. A subpoena would have permitted Mr. Cohen to decide for himself which of his files to turn over and which to withhold as irrelevant or falling within a valid claim of lawyer-client privilege. By contrast, when law enforcement officials execute a search warrant, the government goes in and seizes a broader set of materials — like hard drives and the contents of filing cabinets — then sorts through them itself.
Although it is unusual for the Justice Department to seek a lawyer’s materials, the United States attorneys’ manual contains procedures for how to get both subpoenas and search warrants in such cases. It tells investigators to exhaust all other ways of obtaining evidence first “to avoid impinging on valid attorney-client relationships.” It also encourages them to use a subpoena if possible. But it also acknowledges that sometimes a search warrant may be justified, even though it is more intrusive, such as if there is reason to believe the recipient would destroy the evidence rather than turn it over.
Most of the time, if someone possesses information that is relevant to getting at the truth about a suspected crime, the rules require that person to disclose such evidence, and prosecutors can use those facts in court. But courts have created exceptions to protect confidential communications between a client and a lawyer and a lawyer’s work product on behalf of a client, like notes and files the lawyer gathered in anticipation of litigation.
The idea, said Samuel W. Buell, a former federal prosecutor who teaches white-collar criminal law at Duke University, is that it is generally in the broader public interest to encourage people to consult lawyers and talk candidly with them. That way, lawyers can steer their clients toward lawful conduct in the first place, and better-informed lawyers will make the legal system function more smoothly.
Against that backdrop, Mr. Buell said, the search warrant for Mr. Cohen’s office was “not going to happen unless they feel that they have to, and they think they have something that is really serious going on.”
“I would say that for any law-office search warrant,” he continued, “but we just happen to be talking about a lawyer for the president of the United States.”
No. Only materials that contain confidential communications between a lawyer and a client, or lawyer-client work product undertaken in anticipation of litigation, are potentially privileged. Since the public does not know the details of what law enforcement officials are looking for, that adds a layer of complexity to making sense of the raid.
“It bears remembering that not everything in Michael Cohen’s office, home or hotel is even covered by the privilege to begin with,” said Miriam Baer, a former federal prosecutor who teaches white-collar criminal law at Brooklyn Law School. “There are a lot of papers, data or files that could be in Michael Cohen’s office that don’t fit the definition of privilege.”
No. In certain cases, lawyer-client materials do not receive special legal protections. One of them is called the “crime-fraud exception.” Under this doctrine, the privilege does not protect lawyer-client materials in situations in which the lawyer was helping the client commit a continuing or planned crime or fraud, since that would not serve society’s goal of ensuring lawyers can render sound legal advice. If the judge who signed off on the warrant invoked that doctrine, it would be “extremely significant,” said Katrice Bridges Copeland, a law professor at Pennsylvania State University and a former white-collar defense lawyer.
“To have gotten this search warrant means they are finding that there was no separation between the attorney and the client, meaning they were working together in furtherance of a crime or some sort of fraud to cover up some previous crime,” she said. “That is a big deal. It’s not easy to make that showing to the court and get a search warrant on an attorney.”
When the government seizes materials and sorts through them itself, it carries the risk that officials may see confidential files about unrelated cases or material that is covered by a valid claim of lawyer-client privilege. A defense lawyer could later use that to try to get a case dismissed. To mitigate that risk, the manual says the Justice Department is supposed to create a separate “taint team” of officials who will go through the materials first. They are not supposed to tell their colleagues working on the main case what they saw in any files they end up setting aside. If the search is contested, a judge might review the materials the taint team decides are relevant before the main case team gets to see them.
The manual requires high-level supervisory approval — such as from the head of the Justice Department’s Criminal Division. In this case, the search warrant was personally approved by an even higher-ranking official, Rod J.
