“If this were Hillary Clinton being investigated and they went into her lawyer’s office,” said Alan Dershowitz last night, “the ACLU would be on every television station in America, jumping up and down.” Indeed. Imagine the trembling sanctimony of the Times’s editorial the day after an FBI raid on Hillary’s lawyer, reminding readers that not only is the attorney-client privilege a sacred component of the right to an effective legal defense but that we should presume nothing about her guilt from her anger in the aftermath. The innocent as well as the guilty have the right to shield information from law enforcement, after all. You don’t have to sit for an interview with the police, you don’t have to incriminate yourself by testifying in court, and you (usually) don’t have to worry about the things you say to your lawyer when seeking legal advice ending up in the hands of a “taint team” of DOJ bulldogs. The Times’s investigative unit could find a hundred examples of innocent people wrongly convicted because something they said was innocently misinterpreted or deliberately distorted by the authorities.
Yet here’s the Times’s editorial board, sounding like a cop in a James Ellroy novel, warning Trump that only the guilty have something to hide, son.
Mr. Trump also railed against the authorities who, he said, “broke into” Mr. Cohen’s office. “Attorney-client privilege is dead!” the president tweeted early Tuesday morning, during what was presumably his executive time. He was wrong. The privilege is one of the most sacrosanct in the American legal system, but it does not protect communications in furtherance of a crime. Anyway, one might ask, if this is all a big witch hunt and Mr. Trump has nothing illegal or untoward to hide, why does he care about the privilege in the first place?
The answer, of course, is that he has a lot to hide.
Well, maybe. The Times is right about this, at least: “Mr. Trump has spent his career in the company of developers and celebrities, and also of grifters, cons, sharks, goons and crooks. He cuts corners, he lies, he cheats, he brags about it, and for the most part, he’s gotten away with it, protected by threats of litigation, hush money and his own bravado.” But there are a million things one might tell one’s lawyer that are deeply embarrassing but not criminal. Trump is twice divorced; there are rumors that Stormy Daniels isn’t the only former mistress to receive a payoff; he’s famously shy about sharing information about his finances, possibly because he’s worth much less than he claims. He may have shared medical information with Cohen. Possibly material related to his children. Every bit of it might now be in the hands of the “taint team.” And remember, the privilege applies only to information exchanged in the course of seeking legal advice. Anything said between Trump and Cohen that wasn’t obviously related to a legal matter might be declared unprivileged by the DOJ and thus able to be shared with Bob Mueller and the U.S. Attorney.
Many of you reading this have been through divorces or custody battles yourselves and have had to share sensitive information with your lawyer. How would you feel knowing your casefile is now in the hands of a thirtysomething AUSA somewhere in Washington or Manhattan, being read over lunch while he tries to figure out whether he can share the material with his supervisor or not? Would you care about the privilege? The Times’s argument is garbage.
But that’s still not to say that the raid was wrong. If the feds have probable cause to believe an attorney is participating in a crime with his client — and the probable cause in this case must have been strong to justify a move this explosive — what’s to be done? Does Michael Cohen get a license to do whatever he wants because he has the most powerful client in the world? The whole point of the news yesterday about Rod Rosenstein signing off on the raid is that everyone involved knows how bad the raid looks. You need special DOJ approval to seize any lawyer’s files; for the president’s lawyer, when criticism is destined to be intense, the approval goes (almost) all the way to the top. Rosenstein and the U.S. Attorney wouldn’t have wandered into this sh*tstorm absent something compelling to make them believe that Cohen was both up to no good and a serious risk to destroy evidence if they didn’t grab it first. Turn the Dershowitz example around. If the DOJ raided Hillary’s lawyer’s office because it had good reason to believe her lawyer was involved in criminal activity, what would the reaction on the right be? High-fives and paeans to the rule of law, of course.
Here’s Dershowitz last night on Hannity’s show. By the way, buried in this NYT piece is a detail about sources close to Rod Rosenstein claiming that he’ll resign in protest if Trump gives him the order to Mueller without cause. Everyone assumed that already, I think, but that’s hard evidence of his intentions. And it may affect Trump’s calculations on what to do next. If Rosenstein’s going to martyr himself, Trump might figure that he’s better off firing Rosenstein straightaway and then appointing a new deputy who’ll rein Mueller in.