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 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 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, 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. 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.