Why The FBI’s Raid On Michael Cohen’s Office Didn’t Violate Attorney-Client Privilege

Senior Contributor
04.10.18 6 Comments
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The Stormy Daniels case has largely been discussed in the context of Donald Trump’s infidelity against his wife, who’d just had their son at the time. But there’s a very serious legal side to the case, wherein Michael Cohen, Trump’s personal attorney, was alleged to have given Daniels $130,000 in exchange for a non-disclosure agreement. That’s got the potential to land Cohen, at least, in deep legal hot water, something that was demonstrated rather dramatically when the FBI abruptly raided Cohen’s offices and the hotel room he’s been living in, on referral from Robert Mueller but ultimately at the behest of a U.S. attorney appointed by Trump.

Trump himself has called it a violation of his attorney-client privilege. But in reality, attorney-client privilege is a lot more complex than people realize, and the FBI doesn’t show up at a lawyer’s door with a warrant without both a very good reason and after jumping through a very tight set of hoops.

  • First of all, there are exceptions to attorney-client privilege, and it only covers a specific set of information: Attorney-client privilege only covers communications between an attorney and their client, like emails, phone calls, and personal conversations. It doesn’t cover anything else. So if you told your lawyer you hid the gun you shot somebody with, and somebody else finds the gun, that’s not protected. Secondly, you can’t use attorney-client privilege to commit a crime, called the crime-fraud exception. If you commit a crime, and talk to your attorney about it, you’re covered by privilege. If doesn’t apply when you ask your attorney, “Hey, give my hitman the second part of his payment, would you?”
  • But for Cohen, this is moot: While we don’t know, yet, why the FBI raided Cohen, it’s likely tied to the $130,000 payment to Stormy Daniels. It doesn’t really matter if Trump ordered Cohen to pay off Daniels, as many suspect, or if Cohen just did it on his own without Trump’s knowledge, which is what Cohen claims happened. It’s an illegal campaign contribution either way, which Cohen would be in trouble over no matter who his client was.
  • The Justice Department takes attorney-client privilege very seriously, however: In order to serve a warrant, the Justice Department has to go through several hoops. It has to prove to a U.S. attorney that there’s substantial risk of documents being destroyed if less aggressive methods, like subpoenas, are used. It has to prove there’s a strong likelihood of a crime being uncovered. On site, there are entire squads of agents and lawyers whose entire job is to monitor to ensure privilege is protected, and after the documents are hauled back, there’s a review process so that only relevant, non-privileged information goes in front of the courts.
  • And Trump is effectively a non-entity in this case anyway: The Justice Department doesn’t think you can indict a sitting President. The Constitution is fairly clear that indicting and convicting the president is the job of impeachment. This is why neither Richard Nixon nor Bill Clinton got indicted. And since this was a raid run by the Justice Department, and referred to the Department by Robert Mueller as outside the scope of his investigation, Cohen’s client is immaterial. They’re interested in the crime Cohen committed.

This doesn’t mean Trump is off the hook, of course. But it’s extremely unlikely, outside of items that fall under the crime-fraud exemption, that Cohen would testify against Trump. On the other hand, Trump might want to find another lawyer, as Cohen might be tied up for a long time defending himself.

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