On Monday, FBI agents raided the offices, home, and hotel room of the President Of The United States’ personal attorney, Michael Cohen. Normally, we wouldn’t talk about political issues in an effort to maintain a centered political position as well as focus on the educational aspect of our stories. Fortunately, this story allows us to do both.
(by the way, “A Higher Loyalty” by James Comey releases Monday)
The raids are an extension of both Special Prosecutor Robert Mueller’s investigation into Russian election meddling as well as the completely separate revelations of Stormy Daniels, the adult entertainment actress who claims to have been paid $130,000 by Michael Cohen to keep quiet about an affair with the President.
But how can the FBI raid the offices of the President’s personal attorney? Isn’t that something protected by attorney-client privilege? As it turns out, there is a process which addresses and protects attorney-client privilege while also allowing the advancement of justice. In a moment, we’ll talk about the “taint team” and the “walled garden”.
But, first, it’s important to understand who Michael Cohen is. He is more than just the POTUS’s personal attorney. He is allegedly known as the Presidents “fixer”. If a situation arises that requires “management”, a fixer, in theory, does whatever is necessary to mitigate the situation. In the movies, a fixer is often a hitman or other person who “cleans up” a situation by any means, including murder.
Well, art imitates life, and whatever “fixing” Michael Cohen has done has at least earned him a search warrant and the raids to execute it. The raids were approved as ‘no-knock’, meaning the FBI did not have to notify the occupants before executing the raid, though I found no reports of any forced entry. Asked how the raids were affecting him, Mr. Cohen replied maintaining his innocence but admitting he should have done things differently, whatever that means. He further added that the FBI were “all extremely professional, courteous, and respectful” in conducting the raids, and he was thankful to them for their conduct during the raids. He admitted the raids were “upsetting to say the least”.
However, this didn’t stop the President of these several, sometimes United, States, from expressing himself in frustration. In his customary fashion, Mr. Trump took to Twitter to proclaim that “attorney-client privilege is dead” and that the raids were “a total witch hunt”.
Well. I can tell you with certainty that attorney-client privilege is not only not dead but these raids even took steps to preserve the President’s privilege of confidentiality between himself and his lawyer. And, while I can’t speak to the veracity of any claims of impropriety or wrongdoing, I can say that we have significant and persuasive reasons to believe that this is not a witch hunt in any form.
But, to understand whether the President might be exaggerating, we must first understand attorney-client privilege and the “walled garden” that is used to protect said privilege while also allowing criminal investigations.
In the U.S., Attorney–client privilege is a “client’s right to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and the attorney.” The purpose of the privilege is to encourage clients to make “full and frank” disclosures to their attorneys who are then able to provide candid advice and effective representation.
The privilege only applies to the client, of an attorney, in connection with representation or potential representation, and only if the purpose of the communication was to secure legal advice. So far, this is definitely Michael Cohen’s situation: President Trump is the client, and Michael Cohen is the attorney providing legal advice and representation.
But attorney-client privilege does not apply in several key situations. First, there is no privilege if a third party was present, a third party who is neither attorney nor client. Second, the client can waive the privilege, or override the privilege, by disclosing the confidential information itself. And finally, perhaps most importantly here, the privilege does not apply if the communication was made for the purpose of committing a crime or tort (a tort is a kind of civil wrong, like negligence).
Any one of these reasons can undo the attorney-client privilege, allowing either the attorney themselves to disclose the information or an opposing party, including the government, to seek and use those communications in a court proceeding or criminal charge.
Such seems to be the case here. Both Michael Cohen and Donald Trump have made public statements about the relationship and agreement with stormy Daniels. Enough information has come out publicly to raise concerns, let alone whatever information Robert Mueller has discovered in the course of his investigation into Russian election meddling.
That information was referred to the FBI by Mr. Mueller in order to preserve the integrity of the investigation process. See, Mueller isn’t authorized to directly investigate the Stormy Daniels affair as his investigation’s charter is limited only to connections between Trump and Russia and any matters that arise directly out of his investigation.
Perhaps Mueller could have tried to bring charges himself, but there are some very good reasons not to sidetrack his investigation with something that can be more appropriately handled by the US Attorney’s office. Thus, it appears that Mr. Mueller put together his evidence and such and turned it over to other authorities.
What’s remarkable is who those other authorities are. In order to obtain a search warrant for the President’s personal attorneys documents and communications, a prosecutor is expected to “take the least intrusive approach consistent with a vigorous and effective law enforcement” according to the US attorneys manual. “Consideration should be given to obtaining information from other sources or through the use of a subpoena, unless such efforts could compromise the criminal investigation, or result in the obstruction or destruction of evidence”
We can infer from that that a no knock raid was the least intrusive approach consistent with vigorous and effective law enforcement and that prosecutors were concerned about the destruction of evidence.
The final approval for the raids appears to have come from the US Attorney’s office for the Southern District of New York. That office is staffed by Geoffrey Berman, a Trump appointee, who appears to have recused himself from the decision on the raids. It’s reported that his deputy would likely have made the decision after Berman’s recusal.
Additionally, Rod Rosenstein, a veteran Department of Justice official handpicked by Pres. Trump, also signed off on the warrant and raids.
This is still not enough to have a valid search warrant for the raids. Mueller made the referral to the US attorney’s office, the US attorney and Deputy Attorney General had to put their case together in a search warrant application which then had to go before a federal magistrate judge. The magistrate judge had to review the application for probable cause to believe that the subject premises, Cohen’s office, home, and hotel room, contained a specified evidence of a specified federal crime. This is yet another step where the raids would have been highly scrutinized. And yet they were still approved.
Now the search warrant application and other information behind the raids would still be sealed by the court. Michael Cohen likely has a copy of the search warrant itself. Perhaps that will be leaked sometime; else we will have to wait until the Court is ready to unseal the documents.
In the meantime, what happens to the evidence that was taken in the raids? The FBI claims to have taken computers, files, and Cohen’s briefcase. Does all of that just get turned over to the US attorney? What if those files contain irrelevant information outside of the scope of the search warrant? Isn’t the US attorney an opposing party who shouldn’t have access to information outside of that listed in the search warrant?
Yes! And the FBI and prosecution have to take steps to account for this. Normally, this kind of information is obtained by subpoena, which is a less adversarial process that doesn’t involve a no-knock raid on your office, home, or hotel room. Often, a subpoena doesn’t even require approval by a judge, instead requiring the receiving party to go to court in opposition if there is some problem with the subpoena.
A subpoena, same as a warrant, can only be for relevant information, that is, information that makes the charges or defenses in a case more likely or less likely to be true. Just about any information that is relevant can be obtained during the pretrial discovery process of a case. In this case, the “relevant evidence” is anything not protected by attorney-client privilege, such as communications regarding crimes.
So how do prosecutors prevent themselves from becoming tainted with privileged, confidential information that is not covered by a search warrant or subpoena? This is where my use of the term “walled garden” comes in.
We know the term walled garden from computer and information science. It’s the term used for when a website or app limits the information users can access. Obviously, the overall system has access to a huge amount of information, but the users are only allowed to access their small, limited portion of the available information.
The same concept applies to the sharing of information between the search party, who obtained evidence from the raids, and the prosecutors, who are only allowed to see relevant evidence. The search party is now in possession of both the relevant and irrelevant evidence and needs to sort through it, filtering out the irrelevant evidence and marking the relevant evidence to be passed along to the prosecutors. This team of people doing this sort of document or evidence review is called the “dirty team”, “privilege team”, or, my personal favorite, the “taint team”.
The taint team reviews the evidence for relevancy. They are the only people allowed to pierce the veil of protection that is the attorney- client privilege. They are bound by the highest confidentiality not to reveal any of what they learn publicly. And once they pass the relevant evidence along to the prosecutors, they are done.
From here, the US attorney’s office will review the relevant evidence, determine if there is enough to bring charges, and bring the appropriate charges against the appropriate parties. It may be a while; Attorney Cohen appears to have been Mr. Trump’s personal representation for approximately 10 years. And a new report has surfaced about an alleged child with a housekeeper, something a bit too salacious for further discussion today. My point is that there might be a lot more.
There also might not. It is completely possible that the raid was based on evidence that was either faulty or simply didn’t lead to any actionable discovery. If the FBI and US attorney fail to find anything, I hope they will hold a press conference so that the country may move on from this controversy. And if Mr. Trump or Mr. Cohen feel the legal processes have not been followed, they can, of course, petition the court to suppress the evidence obtained in the raids. There will be plenty of time to do so as none of this is going to move terribly quickly.
And, there is, of course, constant speculation as to whether Mr. Trump will attempt to fire Robert Mueller from his role in the investigation. While this is a perfectly valid concern, it is slightly more difficult for the President to fire a special prosecutor as he does not have direct authority to remove Mueller. Instead, he would have to convince certain Justice Department officials to act in accordance with his wishes, something that’s possible, but at least a little less likely than direct intervention.
At this time, we aren’t sure what charges might be brought or what crime has been committed. We will have to wait and see what the basis of the warrant is and if there’s any valid defense. Reports have speculated that there could be something illegal in connection with the payments to Stormy Daniels but there’s no way to know for sure at this time.
So what’s the take away? What can we learn from all of this? Well, I hope that you’ve learned that attorney-client privilege is not absolute. If you find yourself needing to talk to an attorney in a representation situation, you should know that attorney-client privilege only applies to conversations directly between you and your attorney and not to communications where a third-party was present or advice on the committing of a crime was sought.
You may also have learned that this kind of raid and breaching of the attorney-client privilege is not something that’s taken lightly by the Justice Department or the court system. The raids had to be approved by two of the highest level prosecutors in the country, and seemingly without political bias or agenda.
This means that there really is something behind the search warrant, that Mueller really did find something worth reporting, and at least three high-level officials reviewed the warrant application before its final approval and the execution of the raids.
To quote Ken White of the Popehat legal blog, “this is a Big Deal.”
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