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.

View comments (293)
Read the Terms of Use

Opal cook

So you only defend someone when they have only liberal leanings. I thought you for anyone who is losing their constitutional rights taken away. Whether you agree with someone’s politics or not. I think you are just another liberal joke. Thanks for making sure I don’t donate to you I used to think you were fair apparently I was wrong.

Anonymous

I have to agree. The fact that I logged onto this site to hear your option on this very delicate subject, only to see a "monthly donation page" to stop Trump in general, then read an article about defending government action in invading/seizing the contents of an attorney's office, without knowing ANY of the reasons for doing so, is basically partisan advocacy. Dershowitz is right, if this was Hillary Clinton's lawyer, this article would decry such a seizure as an attack on attorney-client privilege and the actions of a police-state.

Anonymous

What an idiot. Did you even read the article or just see it didn't mindlessly support Trump like you. Step of the bandwagon before you get labeled as a supported of the biggest traitor this country has ever known. At least he will be able to say he was the only President to ever collude with an enemy state. He will finally be able to say he was the best at something and it be true. Best treasonous president ever.

Anonymous

"Collude with an enemy state"? Where is the evidence that this has ANYTHING whatsoever to do with Russia? Really you stupid libs are so tiresome.

Karen

Actually, they have defended people they totally disagree with politically. The ACLU defends people’s 1st Amendment rights under the Constitution of the United States. This is even mentioned in the article, but generally, one needs to read an article to actually understand it.

Anonymous

You can celebrate what a treasonous President he is as we are all vaporized in a nuclear war with Russia. We did it reddit.

Anonymous

Totally agree, sad what’s going on in this country

Wilko

The ACLU defended the Nazi's right to march through a Jewish neighborhood. I don't think Nazis have liberal leanings.

Brad Ocock

Nancy Pelosi and Barabara Boxer have both said nothing was found regarding Trump's alleged collusion.
Mueller has found nothing indicating collusion well over a year of investigating. And in fact, just recently said that Trump is NOT under investigation for any criminal activity.
But don't let the statements of the guy investigating Trump's alleged criminal collusion, sway your opinion. Facts are so last-century when it comes to the opinions of those on the Left.

Anonymous

Did you even read the article to which you responded?

Pages

Stay Informed