Attorney–client privilege is dead!
— Donald J. Trump (@realDonaldTrump) April 10, 2018
Well, so is your Presidency. https://t.co/8zLKlj6WeN
— Rick Wilson (@TheRickWilson) April 10, 2018
Long live the crime-fraud exception https://t.co/1nnqZegqfF
— Preet Bharara (@PreetBharara) April 10, 2018
Remember, @DonaldJTrumpJr cited attorney-client privilege to avoid answering a key question about the Trump Tower meeting fallout to the House Intelligence Committee. https://t.co/bH4oDUrbNB
— Kyle Cheney (@kyledcheney) April 10, 2018
By the way, there is no “consigliere-client” privilege for a mobster’s conspiratorial conversations with his lawyer. Never has been. Just saying.
— Laurence Tribe (@tribelaw) April 10, 2018
The F.B.I. search of Trump attorney Michael Cohen’s office and hotel room is a historic development, even in the lofty context of the Mueller investigation, says @Popehat https://t.co/Af3BTBV58J
— NYT Opinion (@nytopinion) April 10, 2018
… This is what we know, in part from Mr. Cohen’s attorney: The United States attorney’s office in Manhattan, acting on a referral from Mr. Mueller, sought and obtained search warrants for Mr. Cohen’s law office, home and hotel room, seeking evidence related at least in part to his payment of $130,000 in hush money to the adult actress Stephanie Clifford, who goes by her stage name, Stormy Daniels. There are reports that the warrant sought evidence of bank fraud and campaign finance violations, which is consistent with an investigation into allegations that the Daniels payment was illegally sourced or disguised. (For example, routing a payment through a shell company to hide the fact that the money came from the Trump campaign — if that is what happened — would probably violate federal money-laundering laws.)
What does this tell us? First, it reflects that numerous officials — not just Mr. Mueller — concluded that there was probable cause to believe that Mr. Cohen’s law office, home and hotel room contained evidence of a federal crime…
Second, the search demonstrates that federal prosecutors and supervisors in the Justice Department concluded that Mr. Cohen could not be trusted to preserve and turn over documents voluntarily…
Third, the search suggests that prosecutors most likely believe that Mr. Cohen’s clients used his legal services for the purpose of engaging in crime or fraud. Attorney-client communications are privileged, which is why it’s so unusual and difficult for prosecutors to get approval to search a law office. Justice Department regulations require federal prosecutors to set up a system to have a separate group — a so-called dirty team — review the files and separate out attorney-client communications so that the investigators and prosecutors won’t see anything protected by the privilege.
But if a client is using a lawyer’s services for the purpose of engaging in crime or fraud, there is no privilege. The very aggressive search of Mr. Cohen’s office for attorney-client files suggests that the prosecutors believe they can convince a judge that communications between Mr. Trump and Mr. Cohen fall under the crime-fraud exception. If you think they can’t pull that off, think again — they’ve already done it once: Mr. Mueller persuaded a judge to apply the exception to compel testimony from Paul Manafort’s lawyer, arguing successfully that he engaged her services in order to commit fraud…
… [C]onsider this: The Stormy Daniels payout may be outside the scope of the Russia investigation, but it’s possible that Mr. Cohen’s records are full of materials that are squarely within that scope. And the law is clear: If investigators executing a lawful warrant seize evidence of additional crimes, they may use that evidence. Thus Mr. Trump and Mr. Cohen, with their catastrophically clumsy handling of the Daniels affair, may have handed Mr. Mueller devastating evidence…
Russiagate Open Thread: Thrashing MadlyPost + Comments (207)