The Crime-Fraud Exception in the Michael Cohen Case

On Tuesday morning, President Trump reacted to the news that the FBI searched the office of his personal attorney, Michael Cohen, by tweeting “Attorney–client privilege is dead!” On Monday night, he called the search “an attack on our country.” Nothing could be further from the truth. While all the facts are not yet known publicly, all indications thus far are that the search was conducted pursuant to the rule of law, and with sign-offs from Trump appointees. 

We don’t say this lightly. The ACLU is the nation’s premier defender of privacy, and we’ve long maintained that the right of every American to speak freely to his or her attorney is essential to the legal system. These rights are protected by the Fourth, Fifth, and Sixth Amendments, and we are second to none in defending them — often for people with whom we fundamentally disagree.

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. 

The attorney-client privilege has always included a “crime-fraud exception,” which provides that if you are using the attorney-client relationship to perpetrate a crime, there is no privilege. You have a right to talk in confidence with your attorney about criminal activity, but you can’t use your attorney to accomplish a crime. A mobster suspected of engaging in bribery can consult his attorney about the facts of his alleged bribery without fear that the attorney will disclose those communications. But he has no right to have the lawyer deliver the bribe for him.    

The ACLU has long recognized this exception. In fact, the ACLU cited the crime-fraud exception in our efforts to stop the government from concealing evidence of illegal torture by citing the attorney-client privilege.

While the crime-fraud exception is well-established, it is also narrow. And searches of lawyers’ offices should be tightly restricted. The Justice Department’s own guidelines recognize that searching an attorney’s office is not to be done lightly. Unlike ordinary searches, searches of attorney offices require extraordinary approvals from high-level officials — in this instance, from Trump appointees in the Justice Department. 

According to the Justice Department’s guidelines on searching the office of an attorney, a “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.” The guidelines go on to say that to protect the attorney-client privilege, “a ‘privilege team’ should be designated, consisting of agents and lawyers not involved in the underlying investigation,” in order to “minimize the intrusion into privileged material.” The burden of proof is on prosecutors to show that they made no use of privileged material and their investigation was not influenced by it. These protections may or may not be sufficient in particular circumstances, but they show that the Justice Department recognizes, and seeks to safeguard, the attorney-client privilege even in those rare circumstances where it seeks to search an attorney’s office.

The New York Times reports that Deputy Attorney General Rod Rosenstein, a Trump appointee, signed off on the search.  Indeed, all of the top officials involved in the decision to go forward with the search are Republican:  Robert Mueller, Rosenstein, and FBI Director Christopher Wray. The interim U.S. Attorney in Manhattan, Geoffrey Berman, is also a Republican, although he reportedly recused himself.  That all of these Republican officials approved the search refutes any suggestion that it is a partisan “attack.” And most significantly, the search was conducted pursuant to a warrant issued by a nonpartisan federal magistrate judge.

We don’t know all the reasons and circumstances for the FBI search of Cohen’s office and home. News reports suggest that the focus is on Cohen’s payments to two women, adult film star Stormy Daniels and former Playboy model Karen McDougal to suppress their stories of affairs with Donald Trump, and that these payments may have been illegal. But what is clear is that prosecutors had to overcome high hurdles 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.

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Gerald

Excellent analysis.

Anonymous

Maybe the next time the police find 6 lbs of cocaine in a trunk and the dealer's lawyer argues the 4th they can bring up this article and conclude that the search was lawful.

Anonymous

It's sad to see the ACLU that once defended everyone despite their political leanings devolve into we only defend left wing people. The idea use to be we do not endorse this behavior when used against our political opponents, so we have a leg to stand on (precedence) when they try to use it against us. Also, having Republican (especially New York republicans) endorse it doesn't mean the motivations are pure. There are plenty of republicans who also have it out for Trump.

Also, why rush to defend the raid instead of waiting until we have the actual warrant in front of us. I appreciate having all the information as opposed to having some incomplete statement sooner.

Anonymous

You are a hypocrite. Plain and simple. Spin it any way you want. You are a hypocrite.

Anonymous

So sad to see what the ACLU has become.

You have no idea what the warrant was based on you assume it was based on the worst possible circumstance to justify the FBI actions (hitchens razor) when all the reporting has been it is based on the flimsy issue of stormy daniels and overly broad intended to suck up privileged information on unrelated subjects.

The ACLU will never get another cent from me. I used to believe they stood for everyone regardless of affiliation and they were never an organization that just blindly accepted the assertions of law enforcement.

Regardless of whether the warrant is deemed just when more details emerge clearly the ACLU is no longer. It truly is tragic to watch it become a partisan political arm of the DNC.

Steve

Was there ever a time when the ACLU stood up for rights, or have they ALWAYS been a liberal love fest?

I suspect that the officers of the ACLU are a little concerned about what to do with their weekends now that backpage has been shut down.

Danno

The Lefties posting don't seem to care about rule of law, unless they can abuse it. The ACLU has shown it's true colors as well. You people are dense, you aren't succeeding or getting your way. You are just ensuring his re-election. You have shown yourselves to be lacking principles that you stand on. No one is going to vote for you.

You have gone off the deep end.

Anonymous

I know the ACLU is not neutral because I had an experience with them years ago. They lean to the left and please don't try to convince me otherwise. I paid the price.

Anonymous

This kind of specious hair splitting is why after 20+ years of strongly supporting the ACLU I have given up on them. They have become just another ideological special interest group and their special interest is no longer civil liberties but is left wing politics. They pick and chose their customers based on what advances the left wing agenda, not on what advances civil liberties and the constitution.

Karen Johnson

So, you're "celebrating" the raid on Trump's laywer, because the "rule of law" is still alive ?? That's correct. The rule of law is very much alive. Let's take a look, shall we?
1) The Clinton Foundation got shut down in December, 2016. (Doors locked & employees sent home.)
2) The Podesta Group -- shut down for failing to report they worked for RUSSIANS !!
3) FBI's Strzok / Page / Baker / and DOJ's Bruce Ohr -- DEMOTED.
4) McCabe FIRED for lying.
5) The DOJ issued 18,000 "sealed indictments" in the last 4 months. Gee, wonder who's names are on those! (On the average, only 1,000 get issued per year.) Ticky Tock !!
6) Bill & Hillary Clinton are currently under investigation in Arkansas for FRAUD.
7) The Black Democrat Congresswoman (name ??) SENT TO PRISON for stealing $5 Million from a children's charity.
8) And ex-FBI contractor, William Campbell, just testified that Obama / Clinton / Mueller & Holder BURIED the "Russia Bribe Case" to advance he Uranium 1 deal. And that ain't over by a long shot !!
9) Frankengroper and Conyers ousted for harassment.
10) Democrat Rosenstein threatened with impeachment for attempting to bury FISA FRAUD.
So, there you go, Left Brainers. Celebrate all that. Yes ??

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