Matthew T. Mangino: No Mr. President, the attorney-client privilege is not dead
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"Attorney-client privilege is dead!" President Donald Trump tweeted this week after the office of his attorney Michael Cohen was raided by the FBI.
The attorney-client privilege protects most communications between a client and attorney, permitting those communications to be kept confidential and certainly not accessible to law enforcement or prosecutors.
To avail oneself of the privilege, the client and attorney must have a relationship with regard to a specific matter. A client cannot claim to a have an attorney for “all matters.” If an attorney is hired for a bankruptcy, the client’s conversations about tax evasion may not be protected.
The attorney-client privilege insures that a client can speak candidly with his lawyer, providing information necessary to develop an effective legal strategy for a specific matter.
President Trump has said that he did not know what Cohen was doing with respect to the alleged payments to Stormy Daniels — payments that appear to be the focus of the search on Cohen’s office, home and hotel room. He has said he was unaware of the payments and did not know why the payments were made.
The president’s announcement of the death of the attorney-client privilege is a bit premature. The only way that Trump can invoke the attorney-client privilege is if he retained Cohen for the specific purpose of negotiating with, or paying-off, Stormy Daniels.
During the raid of Cohen’s office, according to the New York Times, the FBI took computers, cell phones, business records and other documents related to the Daniels payment, and a $150,000 payment made by the National Enquirer, to Karen McDougal, a former Playboy model who says she also had an affair with Trump.
In addition, Cohen is known to tape and store telephone conversations, reported the Washington Post. Those tapes may now be in the possession of the FBI.
If those communications show that President Trump knew about hush money paid to the women and conspired to deliver it, that could be construed as evidence of facilitating unreported contributions to his campaign — a felony.
Even if Trump has an attorney-client relationship with Cohen there are exceptions to the privilege.
The crime-fraud exception provides that communications with an attorney made in furtherance of criminal activity are not protected. You can tell your attorney about your own criminal conduct and that will be privileged. But you can’t use communications with your attorney to help you commit ongoing or future criminal acts.
If paying hush money to Daniels or McDougal is a crime and that crime was committed by Cohen with the president’s consent, the privileged is waived.
The larger issue is that the United State Attorney for the Southern District of New York was able to get a search warrant. In order to get a search warrant the U.S. Attorney must apply to a federal judge or magistrate. The application for a search warrant would be filed with an affidavit of probable cause. That affidavit must contain sufficient information to convince the judge to approve the warrant.
There is no question that it is unusual for a U.S. Attorney to seek documents from a lawyer that may contain information relating to a client. The DOJ does not take that responsibility lightly. A U.S. Attorney needs the approval of a supervisor before seeking a search warrant for such sensitive material.
Since the potential client in this case is the President of the United States the review went all the way to the top — sort of. Attorney General Jeff Sessions had recused himself from the special counsel probe of Russia meddling in the 2016 election. The second in command at the DOJ, Deputy Attorney Rod Rosenstein, approved the search warrant.
Latrice Bridges Copeland, a law professor at Penn State University told the Washington Post, “This is a big deal.” Bridges Copeland believes that the approval of the search warrant signals that the attorney and client — in this case Cohen and Trump — may have been working together in furtherance of a crime. “It’s not easy to make that showing to the court and get a search warrant on and attorney.”
— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.