Matthew T. Mangino
GateHouse Media
April 14, 2018
“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.
To visit the column CLICK HERE
Posts
No comments:
Post a Comment