Yesterday, FBI agents, under the direction of the U.S. District Attorney for the Southern District of New York (also known as Manhattan), and acting pursuant to search warrants, raided the office, home, and hotel room of Michael Cohen, Trump’s personal attorney and fixer.
Trump, understandably scared out of his head, responded just as you would expect a cornered animal to respond.
I want to address two points.
“Attorney-Client Privilege is Dead”
So Trump claimed, yesterday.
The legal principle of attorney-client privilege protects communications between a lawyer and a client, made in the course of the attorney-client relationship. The legal doctrine is complicated, with exceptions and qualifications. Its application to real life situations is often problematic, even in routine civil and criminal cases. Its application to the Michael Cohen raid will likewise be much debated going forward—in the remote event that Trump can secure competent legal representation.
The most vital qualification is the crime-fraud exception. Suppose my name is Daniel Defendant and I am being charged with shooting Cock Robin, and suppose I say to my lawyer, “Yup, I did indeed shoot that SOB Robin.” That statement is privileged, because it is a statement about a past act, made in the course of seeking legal counsel. I can’t be compelled to testify about what I said to my lawyer. My lawyer can’t be compelled to testify that I said it. And if I said it in writing to my lawyer, the document may not be used in evidence against me.
But suppose I say to my lawyer, “You know, I’m going to shoot that bastard Cock Robin, and will you please hide the murder weapon for me?” That’s a case where the lawyer is being asked to aid in the commission of a crime, the “crime-fraud exception” kicks in, and there is no attorney-client privilege.
This makes things complicated. Section 9-13-420 of the United States Attorneys Manual, reproduced at the end of this post, spells out relevant procedures for raids such as the one yesterday on Michael Cohen.
A Conspiracy of Democrats?
Geoffrey S. Berman, currently the interim U.S. District Attorney for the Southern District of New York, authorized the raid, after one or more potential crimes were referred to him by Special Counsel Robert Mueller.
Attorney General Sessions appointed Berman after Trump had fired his predecessor—and had personally interviewed Berman as a replacement. Berman had previously been Rudi Giuliani’s partner at the Greenberg Traurig firm, and had contributed more than $5000 to the Trump campaign. (This might have been part of a “bundled” contribution solicited by the law firm; I don’t know.)
An August, 2017 N.Y. Times article provides considerable insight into Mr. Berman’s experience, character, and personality.
Extract from the U.S. Attorneys Manual:
9-13.420 – Searches of Premises of Subject Attorneys
NOTE: For purposes of this policy only, “subject” includes an attorney who is a “suspect, subject or target,” or an attorney who is related by blood or marriage to a suspect, or who is believed to be in possession of contraband or the fruits or instrumentalities of a crime. This policy also applies to searches of business organizations where such searches involve materials in the possession of individuals serving in the capacity of legal advisor to the organization. Search warrants for “documentary materials” held by an attorney who is a “disinterested third party” (that is, any attorney who is not a subject) are governed by 28 C.F.R. 59.4 and USAM 9-19.221 et seq. See also 42 U.S.C. Section 2000aa-11(a)(3).
There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients. Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search. Therefore, the following guidelines should be followed with respect to such searches:
- Alternatives to Search Warrants. In order to avoid impinging on valid attorney-client relationships, prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law. 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 prosecution, or could result in the obstruction or destruction of evidence, or would otherwise be ineffective.
NOTE: Prior approval must be obtained from the Assistant Attorney General for the Criminal Division to issue a subpoena to an attorney relating to the representation of a client. See USAM 9-13.410.
- Authorization by United States Attorney or Assistant Attorney General. No application for such a search warrant may be made to a court without the express approval of the United States Attorney or pertinent Assistant Attorney General. Ordinarily, authorization of an application for such a search warrant is appropriate when there is a strong need for the information or material and less intrusive means have been considered and rejected.
- Prior Consultation. In addition to obtaining approval from the United States Attorney or the pertinent Assistant Attorney General, and before seeking judicial authorization for the search warrant, the federal prosecutor must consult with the Criminal Division.
NOTE: Attorneys are encouraged to consult with the Criminal Division as early as possible regarding a possible search of an attorney’s office. Telephone No. (202) 305-4023; Fax No. (202) 305-0562.
To facilitate the consultation, the prosecutor should submit the attached form (see Criminal Resource Manual at 265) containing relevant information about the proposed search along with a draft copy of the proposed search warrant, affidavit in support thereof, and any special instructions to the searching agents regarding search procedures and procedures to be followed to ensure that the prosecution team is not “tainted” by any privileged material inadvertently seized during the search. This information should be submitted to the Criminal Division through the Office of Enforcement Operations. This procedure does not preclude any United States Attorney or Assistant Attorney General from discussing the matter personally with the Assistant Attorney General of the Criminal Division.
If exigent circumstances prevent such prior consultation, the Criminal Division should be notified of the search as promptly as possible. In all cases, the Criminal Division should be provided as promptly as possible with a copy of the judicially authorized search warrant, search warrant affidavit, and any special instructions to the searching agents.
The Criminal Division is committed to ensuring that consultation regarding attorney search warrant requests will not delay investigations. Timely processing will be assisted if the Criminal Division is provided as much information about the search as early as possible. The Criminal Division should also be informed of any deadlines.
- Safeguarding Procedures and Contents of the Affidavit. Procedures should be designed to ensure that privileged materials are not improperly viewed, seized or retained during the course of the search. While the procedures to be followed should be tailored to the facts of each case and the requirements and judicial preferences and precedents of each district, in all cases a prosecutor must employ adequate precautions to ensure that the materials are reviewed for privilege claims and that any privileged documents are returned to the attorney from whom they were seized.
- Conducting the Search. The search warrant should be drawn as specifically as possible, consistent with the requirements of the investigation, to minimize the need to search and review privileged material to which no exception applies.
While every effort should be made to avoid viewing privileged material, the search may require limited review of arguably privileged material to ascertain whether the material is covered by the warrant. Therefore, to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a “privilege team” should be designated, consisting of agents and lawyers not involved in the underlying investigation.
Instructions should be given and thoroughly discussed with the privilege team prior to the search. The instructions should set forth procedures designed to minimize the intrusion into privileged material, and should ensure that the privilege team does not disclose any information to the investigation/prosecution team unless and until so instructed by the attorney in charge of the privilege team. Privilege team lawyers should be available either on or off-site, to advise the agents during the course of the search, but should not participate in the search itself.
The affidavit in support of the search warrant may attach any written instructions or, at a minimum, should generally state the government’s intention to employ procedures designed to ensure that attorney-client privileges are not violated.
If it is anticipated that computers will be searched or seized, prosecutors are expected to follow the procedures set forth in the current edition of Searching and Seizing Computers, published by CCIPS.
- Review Procedures. The following review procedures should be discussed prior to approval of any warrant, consistent with the practice in your district, the circumstances of the investigation and the volume of materials seized.
- Who will conduct the review, i.e., a privilege team, a judicial officer, or a special master.
- Whether all documents will be submitted to a judicial officer or special master or only those which a privilege team has determined to be arguably privileged or arguably subject to an exception to the privilege.
- Whether copies of all seized materials will be provided to the subject attorney (or a legal representative) in order that: a) disruption of the law firm’s operation is minimized; and b) the subject is afforded an opportunity to participate in the process of submitting disputed documents to the court by raising specific claims of privilege. To the extent possible, providing copies of seized records is encouraged, where such disclosure will not impede or obstruct the investigation.
- Whether appropriate arrangements have been made for storage and handling of electronic evidence and procedures developed for searching computer data (i.e., procedures which recognize the universal nature of computer seizure and are designed to avoid review of materials implicating the privilege of innocent clients).
These guidelines are set forth solely for the purpose of internal Department of Justice guidance. They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal, nor do they place any limitations on otherwise lawful investigative or litigative prerogatives of the Department of Justice.
See the Criminal Resource Manual at 265, for an attorney office search warrant form.