MICHAEL ZILBER—On April 9th, FBI agents—upon referral by special counsel Robert Mueller to the United States Attorney’s Office for the Southern District of New York—raided Michael Cohen’s office. Cohen, President Trump’s longtime attorney, is currently being investigated for bank fraud, wire fraud, and campaign finance violations. As part of its raid, the FBI seized Cohen’s records about his payment to Stormy Daniels and records about his clients, including communications between him and President Trump.
Immediately following the seizure, Cohen’s attorney objected to the US Attorney’s Office use of a search warrant and its seizure of “protected attorney client communications.” The following morning, President Trump vehemently tweeted that “attorney-client privilege is dead.” In the days and weeks following President Trump’s declaration, reporters, commentators, and pundits alike have discussed whether or not the communications between President Trump and Mr. Cohen are, in fact, privileged. Before addressing this question, however, it is important to understand the procedure in place for authorities to review this critical information.
While it is uncommon for federal agents to review an attorney’s documents and communications, the US Attorney’s manual has a designated policy “to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material.” That designated policy further involves having a “taint team”—otherwise known as a “privilege team” or “filter team”—of uninterested prosecutors examine all the attorney’s records and separate which records are covered by attorney-client privilege. That team then provides the investigating prosecutors with all the unprivileged, relevant records.
Nevertheless, Mr. Cohen and President Trump’s attorneys have argued that the government’s “taint-team” procedure is not enough to protect the communications; and, therefore, federal prosecutors should be temporarily prohibited from reviewing Mr. Cohen’s records. Instead, Mr. Cohen’s team contends that Mr. Cohen—or, as an alternative, an independent lawyer—should review the documents first, withhold the privileged material, and then turn over the unprivileged files over to the investigating prosecutors. The government, on the other hand, assertedthat the seized emails demonstrate that Mr. Cohen was “performing little to no legal work, and that zero emails were exchanged with President Trump.” Moreover, the government arguedthat their investigation focused not on Mr. Cohen’s work as an attorney, but, rather, on his business dealings.
U.S. District Court Judge Kimba Wood indicated that she would not grant President Trump’s and Mr. Cohen’s request to let them decide what material is, or is not, privileged. Judge Wood did allow prosecutors to have their filter team run a mechanical search on all the documents collected to determine how many files it thought may be privileged. Originally, Judge Wood did not make an ultimate decision as to whether a “taint team” would review the possibly privileged material. Late last week, Judge Wood appointed retired federal judge Barbara S. Jones as the special master to examine the records in this case.
So, are the communications privileged? Yes, the attorney-client privilege protects communications between an attorney and his/her client when the client is seeking or receiving legal advice from the attorney. Nevertheless, exceptions exist. Most notably, the crime-fraud exception provides that communications usually covered by attorney-client privilege no longer are privileged if the communications are “in furtherance of a current or a planned crime or fraud.”
Here, commentators suggest that the use of a search warrant to obtain Mr. Cohen’s records indicates that federal prosecutors already had probable cause to indicate that Mr. Cohen and President Trump’s communications were related to a criminal act or a perpetuation of fraud. Yet, Michael Mukasey—former United States Attorney General under President George W. Bush—points out that the exception itself has limits. Specifically, the exception is read narrowly and applies only to the motive of the client. Thus, if Mr. Cohen acted on his own—for President Trump’s benefit but without President Trump’s authorization—then evidence of Mr. Cohen’s actions would not be privileged, but President Trump’s statements would be.
There is one more wrinkle in this case. When reporters pushed President Trump on the payment Mr. Cohen made to Ms. Daniels, President Trump asserted that he had no knowledge of the payment. Previous statements made by Mr. Cohen suggest the same claim. Thus, legal experts recognize that if both Mr. Cohen and President Trump declare that President Trump had no idea about the payment, then they cannot argue that their communications on the subject are covered by attorney-client privilege—presumably, if no conversations took place, there would be no conversation to protect.