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.

 

David Cole is the Legal Director for the American Civil Liberties Union. 

(13) comments

Patriot23157

Matthew Vadum, Senior Editor at Capital Research Center, wrote in his Sep. 2009 article "What Does the 'A' Really Stand For?," in Townhall:

"The ACLU's intellectual incoherence seems to stem from the views of its principal founder and longtime leader, Roger Nash Baldwin. The group was founded in 1920 by Baldwin, an avowed anarchist, pacifist and Communist... Nowadays the ACLU stumbles from controversy to controversy, roughly following Baldwin's playbook. It defends terrorists, illegal aliens and child molesters, while letting law-abiding Americans and victims of reverse racism fend for themselves."

RickVerde

ACLU is only for civil liberties when it suits their own leftist agenda. Can you imagine the uproar if hillarys lawyers office had been raided, as it should have been. News flash, the people who elected Trump are not stupid and see this for what it is. This attempt to remove a sitting president by the radical left wing media will backfire. I have never seen such a group of crybabies. Crooked hillary lost, get over it !

global hoosier

Like Avenatti said...... thug thug. thug. thug. etc

strtdude

What if they gave a soap opera and nobody came ? It's over folks. The corporate fascist media is doing what ever they want now. You can't even read this article all the way through. It is plain silly.

bettermethanyou

The ACLU is a lot of things but it's hard to call them pro-free speech or pro-free religion with a straight face. Like so many other liberals they are tolerant of only those who believe what they do.

global hoosier

I take the FBI over the mob no matter how much a fake conservative protests

sidearm

Being a member and defender of the ACLU is a badge of shame today. You are just a mouthpiece of the liberal left and are not taken seriously anymore by conservatives. Same s--t, different day.

Leeet

Being a member and defender of the NRA is a badge of shame today. You are just a mouthpiece of the conservative right and are not taken seriously anymore by reasonable American citizens. Same s--t, different day.

fire111

I gotta stand with sidearm!

sidearm

Thanks for copying my post Leeeeeet. Best form of flattery there is. Some how I must have hit a nerve.

RickVerde

@sidearm - Oh yes you did !!

Leeet

Sorry, Sidearm, that is NOT what I was doing.....your comment tells me that you don't understand what I was doing with my comment.....sort of proving my point...

global hoosier

Comey calls Trump a mob boss type (who has snookered you guys for years)

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