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No, the FBI’s Michael Cohen Raid Did Not Violate Attorney-Client Privilege

Those decrying the FBI’s raid of Donald Trump lawyer Michael Cohen’s office as yet another example of Special Counsel Robert Mueller’s legal zealotry are magnifying fleas into elephants.

The search warrant executed last Monday targeting the New York legal office of Cohen, who serves as Donald Trump’s personal attorney, reportedly yielded a computer and phone and personal financial records, including tax returns. Agents were also reportedly looking [1] for information on the now-infamous Hollywood Access tape and records of the taxi fleet Cohen manages in New York.

This has been portrayed by Trump and others as a dagger in the heart of attorney-client privilege and yet another overreach by Mueller’s goon squad. The contrived hysteria may even be setting the stage for the president to fire Attorney General Jeff Sessions, Deputy Attorney General Rod Rosenstein, and Mueller in the forthcoming days or weeks.

To the contrary, the investigation is not pushing the edge of the law regarding the attorney-client privilege. The law only protects communications pertinent to the receipt of legal advice, not everything in an attorney’s office. The privilege is held by the client, not the attorney, and does not protect communications concerning future crimes. The privilege is undisturbed if protected communications disclosed to the government are blocked from direct or indirect use in prosecuting the client. This separation is typically accomplished by a “taint team” that screens material for privileged information that is withheld from prosecutors. Taint team vetting may be challenged as insufficiently protective of attorney-client communications by the defendant before a federal judge.

So what of these charges against Cohen and could they really hurt the president?

Federal election laws define a campaign contribution as “anything of value given to influence a Federal election.” It is common knowledge that Mr. Cohen acknowledged that he paid porn star “Stormy Daniels” $130,000 two weeks before the 2016 election in exchange for her staying silent about her 2006 affair with Trump. No one pays for silence unless there is something to hide. The payment was made 10 years after the alleged dalliance. The obvious purpose was to influence the outcome of the election by concealing damaging information about Mr. Trump’s character. That made Mr. Cohen’s payment an undisclosed campaign “contribution” to Mr. Trump vastly exceeding [2] the individual statutory limit of $2,700.

Similarly, Democrat John Edwards was prosecuted (later acquitted) for soliciting and spending nearly $1 million in his 2008 presidential campaign to conceal his affair with Rielle Hunter, so this is not a crime normally brushed under the rug. The public record also establishes probable cause to believe Cohen was behind the payment of $150,000 to Playboy Bunny Karen McDougall to kill her story about a protracted extramarital relationship with Mr. Trump that could have torpedoed his presidential ambitions. The question remains, of course, how much this will implicate and hurt Trump, who has denied the affair with Daniels and any other “wrongdoing.” Cohen said he paid Daniels out of his own pocket and was not reimbursed by Trump or the campaign.

There remains the question of why Mueller got involved in the first place. Reportedly [3], while in the course of investigating Trump’s alleged collusion with Russia, Mueller came across possible wire and bank fraud and FEC violations regarding Cohen [4]. He referred what he found to Robert S. Khuzumi, assistant U.S. attorney for the Southern District of New York, because Mueller is not authorized to prosecute such crimes. There is nothing irregular in that. The U.S. attorney in New York works for the Department of Justice, like Mueller. If Khuzumi thinks it’s a bad case, he can drop it at any time. Mueller was out of the equation when the search warrant was issued by an independent federal judge based on probable cause to suspect crime. Yet the raid has drawn a backlash from Trump and his supporters who say Mueller is using the FBI as proxy agents to dig into places he is not officially allowed to go.

Khuzumi spoke at the 2004 Republican National Convention in favor of President George W. Bush. Approval to search Cohen’s offices was given by Republican Deputy Attorney General Rod Rosenstein, who was appointed by President Trump. Special Counsel Mueller, a Republican who was previously appointed director of the FBI by Bush, made an apparent referral of the case to the Southern District of New York. In other words, no Democratic fingerprints are anywhere to be found on the investigation of Mr. Cohen.

In sum, to borrow from Mark Twain, media reports of the death of the attorney-client privilege harbingered by the Cohen search warrant are greatly exaggerated. The real story is that it may be used by President Trump to justify in part Mueller’s firing and a second edition of President Nixon’s “Saturday Night Massacre.”

Bruce Fein was associate deputy attorney general under President Reagan and is the founding partner of Fein & DelValle PLLC.

35 Comments (Open | Close)

35 Comments To "No, the FBI’s Michael Cohen Raid Did Not Violate Attorney-Client Privilege"

#1 Comment By JK On April 13, 2018 @ 1:52 pm

John Edwards was acquited on one charge and a mistrial on five others w/o retrial. So there was no conviction there, these actions are not business as usual, and the DOJ lesson from that case should have been to cease such abusive prosecutorial misconduct, not to repeat it. These examples show why campaign finance restrictions are an unconstitutional burden on freedom of association. Trump is a rich man, so could afford to pay the hush money if he believed it necessary without it being a crime. As it appears, Cohen believed it important to pay w/o asking Trump, thinking he’s helping a friend. Now what of Edwards? Maybe Edwards couldn’t afford to pay hush money, so he needed and solicited help from friends. By making it a crime for friends to help him, the law favors rich candidates like Trump that can afford to do things others can’t without breaking the law.
There is zero chance of a jury conviction here, so DOJ shouldn’t have pursued it given the incendiary effect of conducting raids on someone’s attorney. Furthermore, there’s zero chance of Muller getting jury convictions on the pile of horse manure prosecutions he’s pursuing. The only convictions Muller is getting is from people buckling under the fiduciary extortion inherent in his tactics and copping a plea even though a jury would never convict them.

#2 Comment By curri On April 13, 2018 @ 2:05 pm

So who do we believe, Dershowitz or Fein?

Similarly, Democrat John Edwards was prosecuted for soliciting and spending nearly $1 million in his 2008 presidential campaign to conceal his affair with Rielle Hunter, so this is not a crime normally brushed under the rug.

Maybe you should have picked an example where the defendant wasn’t acquitted. It’s easy to see how an expansive definition of the term “campaign contribution” could be dangerous.

#3 Comment By Observer On April 13, 2018 @ 3:06 pm

Nice way to twist this witch hunt. Except for a small number of the most extreme Trump hating left wing zealots, most of America is sick and tired of hearing about Mueller and his witch hunt. We are sick of seeing his bulldog face on our news site every single freaking day. This bulldog swamp creature who is himself completely crooked and compromised needs to go away and never be heard from again, along with his equally corrupt enablers Rod Rosenstein and the weakling Jeff Sessions. All need to go get lost. America is sick and tired of them. Whether these deep state swamp creatures like it or not we elected Trump as our president, now let the man do his job!

#4 Comment By Segreto On April 13, 2018 @ 3:19 pm

So, we must trust the FBI not to look at privileged documents?

I love it!

That crazy Constitution wants to protect People from the government, but that was before anything like the FBI was even imagined. We can all trust these men-of-honor as they are nothing like men from days gone by. You know the greedy, dishonest types that the FBI ferrets out.

#5 Comment By William M Fellows On April 13, 2018 @ 3:22 pm

Fein.

Dershowitz was a weasely b*-hole when he was defending and promoting radical Left causes. No reason to change opinion of his ‘analysis’ now.

#6 Comment By Jeffrey L Minch On April 13, 2018 @ 3:30 pm

Let’s be clear in the #nevertrump world and in the Obama appointee world, AUSA Robert S Khuzumi — former head of enforcement of the US SEC and Obama appointee — lines up on the other side of the street from Pres Trump.

The smallest amount of research could have verified this “taint.”

Come on, fight fair, man. Call balls and strikes.

#7 Comment By sglover On April 13, 2018 @ 3:41 pm

As it appears, Cohen believed it important to pay w/o asking Trump, thinking he’s helping a friend.

Uh huh. After all, the word “friendship” is from the ancient Greek word for “bag man”, right?

#8 Comment By Pear Conference On April 13, 2018 @ 3:41 pm

Trump supporters:

Unless you work for the FBI, you don’t know yet what the FBI knows and what evidence it has.

Therefore, you are in no position to spout off about whether the investigation is justified.

#9 Comment By JeffK On April 13, 2018 @ 4:28 pm

From what I understand Edwards hush money was given to his lover a year before the election. Cohen gave Stormy hush money a week or two before the election.

My understanding is the Edwards acquittal was because so much time had passed the jury did not see it as an election issue.

#10 Comment By KD On April 13, 2018 @ 4:42 pm

The formal dismissal of charges was filed in federal court in Greensboro, N.C., on Wednesday. The decision came less than two weeks after Edwards’s trial on the campaign finance-related charges ended when a jury deadlocked on five felony counts and voted to acquit him on one charge.

The one-page filing concluded a prosecution that sparked significant criticism of the Justice Department by campaign finance lawyers who deemed the case legally flawed and by Democratic activists who considered it a form of political payback from a Republican prosecutor in North Carolina.

[5]

So I guess while Edward’s case was “critically flawed” according to campaign finance lawyers, and “political payback” from a GOP prosecutor, this raid is perfectly fine.

#11 Comment By jk On April 13, 2018 @ 4:52 pm

What is the scope of the Mueller instigation?

#12 Comment By JK On April 13, 2018 @ 5:14 pm

@sglover: it’s not a crime to pay someone to keep a secret in contexts where there’s absence of legal obligation to disclose them. So there was nothing illegal going on for Cohen to “front” and the term “bag man” does not apply.

#13 Comment By William Dalton On April 13, 2018 @ 5:33 pm

I agree with JK. The first problem with this investigation is that it is premised on the possibility of a violation of campaign finance laws – laws which, unless they punish actual bribery of a public official to misuse the powers of his office, should be no crime. They should be stricken from the books. But Congress won’t do so, because all these laws have the practical effect of helping incumbents. Trump, by having the ability to successfully mount his campaign outside the strictures of the regulated campaign finance system, upset the apple cart (and this only one of many). Men have been paying off women to keep quiet about affairs, about bastard children, about numerous indiscretions, from time immemorial. Candidates for public office are only one variety of men subject to such public embarrassment, and when someone pays to make it go away in a way the wife won’t find out doesn’t make it a “campaign contribution”. More like “insurance of marital harmony”.

But while attorney-client privilege isn’t a shield to protect “lawyers” and “clients” who conspire together in criminal activity, it is not the province of criminal prosecutors initially to pierce that shield. If a lawyer is engaged in criminal activity he should be disbarred. Then, if he and his erstwhile clients continue in their criminal wrongdoing, there will be no problem in searching the one’s records with the other’s. But no prosecutor should have any power not also enjoyed by the criminal defense attorneys who must come to court equally armed for the scales of justice to balanced. When defense attorneys can send their agents to rifle through the files of district attorneys to find evidence of wrongdoing done against their clients it will be time to allow prosecutors the same leeway to invade the attorney-client privilege.

#14 Comment By Colin Chattan On April 13, 2018 @ 7:42 pm

Sglover lol! As Steve Martin imitating Peter Sellers portraying Jacques Clouseau would have said, “Good one!”

#15 Comment By Pete On April 13, 2018 @ 8:32 pm

Pear Conference: It’s not about what the FBI knows or has, but how they acquired it.

#16 Comment By Ray Woodcock On April 13, 2018 @ 9:08 pm

It’s an unusual lawyer who [6] and still winds up being [7], despite being “very conservative,” as a “sincere conservative” who is willing “to put principle above politics.”

I hate partisanship, which might be roughly defined as the willingness to mislead people in order to help one side win. I hadn’t previously focused on Bruce Fein. My impression in this case is that he is rebutting certain falsehoods about Mueller, Cohen, et al. because he believes conservatism wins on its merits, without needing to distort the facts. I would read this sort of thing all day, and go to bed feeling better. Kudos to TAC for publishing it.

#17 Comment By georgina davenport On April 13, 2018 @ 10:10 pm

JK says, “Trump is a rich man, so could afford to pay the hush money if he believed it necessary without it being a crime.”

But Trump did not want to admit that HE paid the hush money. In fact, he insisted he did not know anything about the NDA and left his “friend” Cohen to hold the bag.

#18 Comment By georgina davenport On April 13, 2018 @ 10:15 pm

Robert Mueller has proven himself to be a man of honor and integrity with a lifetime of service in the military and in law enforcement. Yet the Trump supporters choose to believe a man like Trump who lies frequently and naturally with things small and large. In my opinion, these Americans, with this kind of thinking (or non-thinking), is the greatest threat to our country and democracy.

#19 Comment By Ken T On April 13, 2018 @ 11:31 pm

“So, we must trust the FBI not to look at privileged documents?

No, I certainly wouldn’t trust them not to look. But the fact remains that they cannot use any evidence found that way in court. If they try to, the defense will move to stop it from being used. If the judge allows it anyway, and the defendant is convicted it then becomes a basis for appeal. (When this is done by a defendant you don’t like, you call it “getting off on a technicality”, and are outraged).

#20 Comment By Mark On April 13, 2018 @ 11:57 pm

This is a laugh riot.

Citing Republican handling of the situation as the defense as to why this isn’t an investigation looking for a crime demands forgetting the unprecedented cross isle hostility to Trump during the election and after.

It’s weak and unconvincing, Trump appointment or no. This is institutionalized opposition research using law enforcement.

#21 Comment By furbo On April 14, 2018 @ 2:58 am

Biggest loser in all this mess is the American Public who have with reason lost faith in their Justice system at the Federal Level.

What they have done to Flynn, Manafort, & others, they can much easier do to any of us.

#22 Comment By curri On April 14, 2018 @ 10:28 am

“Fein”

Fein flipped from authoritarian to libertarian and now back to authoritarian again. He currently has great faith in the FEDGOV prosecutors and their 97% conviction rate. And even when they fail, as in the case of Edwards!

#23 Comment By Michael Kenny On April 14, 2018 @ 11:22 am

The interesting point is the same as with the infamous Nunes Memo. Cohen is seeking to have some, at least, of the evidence excluded. Nobody does that unless they beleive that the evidence in question will incriminate them. What that tells us is that Cohen, and possibly Trump, are guilty of something which Cohen believes that evidence will prove. All Trump has to do to get everybody off his back is to get Putin out of Ukraine. At that point, he can name his price. In fact, if he gets Putin out of Ukraine without a war, he’ll probably get the Nobel Peace Prize!

#24 Comment By jk On April 14, 2018 @ 12:24 pm

“Unless you work for the FBI, you don’t know yet what the FBI knows and what evidence it has.”

Ah yes, let us hush our judgement and not second guess our national police since they are flawless.

Law enforcement and the military should not get unlimited and unquestioned reverence as they have flaws (this is coming from a vet that deployed multiple times).

I am no Trump supporter and hate the scumbag as much as any blue tide snowflake but let’s not grant them saint status, unlimited powers, and a pass on how they swept under Hillary’s various abuses and half-arsed investigations.

#25 Comment By blackhorse On April 15, 2018 @ 8:42 am

“campaign finance restrictions are an unconstitutional burden on freedom of association. Trump is a rich man, so could afford to pay the hush money if he believed it necessary” In other words, let money talk! There’s “authority, tradition, prescription in action!”

#26 Comment By blackhorse On April 15, 2018 @ 8:50 am

More on “the burden of association”: Elliot Broidy, recently found out in a play girl hush-hush, had others ways he liked to ‘pay-to-play’: Broidy pleaded guilty in New York for his role in a pension pay-to-play scheme, admitting he had doled out nearly $1 million in favors to New York state pension officials in return for their $250 million investment in Markstone Capital, the Israel-focused investment fund he co-founded.
[8]

#27 Comment By Neo Cordero On April 15, 2018 @ 6:40 pm

Jeffrey Minch, balls and strikes? This isn’t a game. You sound like diGenova.

“President Trump’s personal lawyer said “conflicts” prevented Joseph diGenova and his wife, Victoria Toensing, from joining the team, just five days after he … The law firm diGenova runs with Toensing also represents two other people caught up in the Mueller investigation, Mark Corallo and Sam Clovis, …

“Victoria Toensing and her husband and legal partner Joseph diGenova are pushing claims that anonymous State Department and CIA “whistleblowers” have been blocked and threatened by the Obama administration to prevent their testifying on the September 2012 attack on the U.S. diplomatic facility in Benghazi, Libya. Toensing and diGenova are longtime Republican activists, and Toensing has a history of pushing dubious claims and falsehoods into the media.””

Case Closed

#28 Comment By Mario Diana On April 16, 2018 @ 9:30 am

The law requires that “blackmail payment” be the official reason given when the bank asked about the transfer of funds, and that this then be filed as an in-kind campaign contribution?

If “anything of value given to influence a Federal election” is the standard, then for sure there are journalists and editors working for several newspapers, along with agents and officials working in some capacity for the Obama administration’s Department of Justice, who should have to answer for burying Dame Hillary’s dirty laundry.

#29 Comment By Dan Greene On April 16, 2018 @ 8:06 pm

Very very poor analysis of the law and facts.

#30 Comment By EliteCommInc. On April 16, 2018 @ 10:14 pm

Boy oh boy . . .

has justice abandoned the barn. It didn’t just leave, it ran at full speed.

I have one comment because I kn ow the childish claims will come about that I support adultery. relations outside of marriage — and any number of silly putty high moral turf nonsense. No. I don’t support or defend any such dynamic.

But I do believe that these issues are between husband, wife, whomever and God. If President Trump were my pastor, I would certainly lend my perspective, and even then unless the matter was brought before the body – caution — but he isn’t my pastor, so this remains a private matter.

This he said, she said “threat” remains a very peculiar turn which as yet remains a unsubstantiated. In my view once there was an agreement to remain silent that included an exchange of money — the issue is closed. If the agreement was legally binding, any violation would constitute a breech and subject to redress.

I find it hard to believe that a judge would grant a warrant for an attorney’s office unless there was substantial proof of possible misconduct, beyond merely being accused. Lawyers are accused all the time. I am not sure how many criminal organization attorney’s have their files confiscated. It sounds rare and extreme.

But they have been widdling away at President Trump for more than two years. Again that sword of Damocles is n o jo9ke and it has done its work. What troubles me is that this was consensual and once it’s consensual, that’s it. President Trump has attempted to do what most men do when they stray — keep it from his family. I think that is the real press here. If the record is correct, it’s out of the bag and the rest is just messiness. And if there’s one thing lawyers no how to do is make messes of people’s lives with abandon. And that the US would allow itself to once again r4est the future on personal indiscretions – given the full plate is in my view bizarre.

“The law requires that “blackmail payment” be the official reason given when the bank asked about the transfer of funds, and that this then be filed as an in-kind campaign contribution?”

I am not sure of the argument here. The crime here would not be the payoff. The crime would be the blackmail. If that is in fact what took place. I don’t what the law is in reference to using campaign funds to pay off a black mailer.

I just buy that there is anything all that sinister here. Man has a fling. Apparently with a woman accustomed to having flings for pay. Man attempts to hide said fling from family . . . Is either blackmailed or offers to pay for her silence. Said woman takes the money. And is subsequently maybe sorta, kinda warned to stay quiet (if accurate) in lieu of said deal. She claims she was threatened but never reports the threat until — years later.

I hate to be tawdry speculator — but the adult film business hasn’t shaken it’s tawdry reputation of of world filled with all manner of men and women motivated to engage in all manner of curious behavior. I am unclear why Miss Daniels based on her own comments, assumed that said warning had anything to do with Pres. Trump or anyone associated with him. Now according to the film Boogie Nights, the industry is a family, but its loaded with all kinds of drama, with all kinds of mishaps, ambitions, jealousies, money issues, role issues, hurt feelings . . . like people in real life.

Frankly, I am, surprised that even a FISA court would render a cause for warrant merely on the comments related by Miss Daniels.

Well, Mr Trump, I will admit that your tenure is loaded with unfair treatment. I have always chagrined the tweetering or tweeting as the executive. But for all of your angst about black people —

Welcome to their world of constantly being suspect for anything and everything and under constant and sustained suspicion. It’s a shame when people engage in this kind of craziness, because they didn’t get their way.

Washington becoming the Peyton Place that never ends . . .

#31 Comment By elkern On April 17, 2018 @ 10:01 am

The Taint Team will ensure that pimp-john privilege is not violated.

#32 Comment By Kenneth Almquist On April 17, 2018 @ 3:46 pm

“I am not sure how many criminal organization attorney’s have their files confiscated. It sounds rare and extreme.”

Most “criminal organization attorneys” are careful to limit their relationships with their clients to an attorney/client relationship.

Cohen reportedly put his own money into New York taxi medallions. He says he paid Stormy Daniels with his own money. Attorney client privilege doesn’t protect documents dealing with Cohen’s role as a party to these transactions.

#33 Comment By One Guy On April 17, 2018 @ 4:50 pm

Apparently, some commenters think Hillary Clinton has something to do with the Feds seizing Cohen’s files. The Whataboutism is strong here.

#34 Comment By EliteCommInc. On April 17, 2018 @ 5:01 pm

“Cohen reportedly put his own money into New York taxi medallions. He says he paid Stormy Daniels with his own money. Attorney client privilege doesn’t protect documents dealing with Cohen’s role as a party to these transactions.”

I guess one would have to know the arrangements of the agreements. Then a warrant should have been limited to said related material. Bt if he in fact paid her out of pocket — I am confused about the cause for warrant. It’s a so what. He paid, she agreed. If in fact, the money was paid as agreed and the money was not from anything related to the campaign —
The only issue here is whether there was a threat via this lawyer or Pres Trump. And even then —
But based on what is the public domain, in my view, none of that is corroborated. Even if Miss Daniels is sincere, it is entirely possible she is sincere about something that did not occur or occurred but did not involve Pres Trump or his lawyer, or had nothing to do with their tryst.

On its face, this still has all the appearance of a fishing expedition to hunt up a crime as opposed to evidence that there might be a crime.

Again, I am not defending relations out of wedlock.

#35 Comment By Me On April 22, 2018 @ 4:58 pm

No one certainly pays for silence when no one is paying attention to the accusations. The elsction brought attention that made the allegations damaging not only politically but personally for Trump, his wife, and his family. It also damaged his and therefore Cohen’s business interests. There are lots of reasons that Cohen as a long term friend and business associate of Trumps might have paid her. The only one that is illegal is if he did it to influence the election. The prosecution will have to prove beyond a reasonable doubt that Cohen would not have made the payment if not for the election.
As we saw with Edward’s case that’s not easily done. Edward’s wealthy lo g term friend gave huge amounts of money to help him keep his mistress out of the public eye during the primary. But giving Edwards large gifts wasn’t out of character for him. The jury decided there wasn’t proof that a crime had been committed.
The author tries to uss Edwards case as an example of how such “crimes” aren’t normally ignored, but what it shows is that the one time prosecutors attempted to charge someone in a similar case the jury determined that no crime had been committed.
If they want to prosecute Cohen they need some evidence that the payment was made specifically to influence the election and not for another reason.