Donald Trump wants everyone to know that he’s still seeing red after the raid on his private attorney’s offices. The president took to Twitter first thing this morning to once again decry the “TOTAL WITCH HUNT!” that led to it, but not before offering an obituary for the protected relationships between lawyers and their clients:
Attorney–client privilege is dead!
— Donald J. Trump (@realDonaldTrump) April 10, 2018
Is it? Alan Dershowitz didn’t declare it totally dead in an interview last night with Sean Hannity, but the difference might have been as nuanced as the “mostly dead” definition in The Princess Bride.
The only question is who’s blaving:
“I tell [clients] on my word of honor that what you tell me is sacrosanct,” he said. “And now they say, just based on probable cause … they can burst into the office, grab all the computers, and then give it to another FBI agent and say, ‘You’re the firewall. We want you now to read all these confidential communications, tell us which ones we can get and which ones we can’t get.'”
“If this were Hillary Clinton being investigated and they went into her lawyer’s office, the ACLU would be on every television station in America, jumping up and down,” he added.
“The deafening silence from the ACLU and civil libertarians about the intrusion into the lawyer-client confidentiality is really appalling,” Dershowitz said. …
“This is a very dangerous day today for lawyer-client relations,” he added.
It’s not a terribly good analogy, mainly because Hillary Clinton wouldn’t have had her own personal attorney handle the issue. She would have rinsed it through the Clinton Foundation, or asked Huma Abedin’s attorney for assistance. It’s similar to the differing strategies used in, ahem, “consulting” with foreigners to dig up dirt on each other during the 2016 election. Donald Trump Jr, Jared Kushner, and Paul Manafort put themselves in a room with a Russian attorney suspected of ties to intelligence agencies, while Hillary had a low-level DNC staffer meet with Ukrainian diplomats. The lesson: Always use cut-outs.
Not everyone believes that attorney-client privilege is dead, though. Trump’s tweet this morning drew a rebuttal from …. Kellyanne Conway’s husband? Er, at least someone using the same name (Update: The Hill says it’s her husband):
— George Conway (@gtconway3d) April 10, 2018
The link goes to a lengthy Department of Justice explanation of the process used to seize materials from attorneys that become a “suspect, subject, or target” of an investigation. Key point:
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.
Dershowitz argues that “probable cause” is too easy to gin up for search warrants on attorneys as means to get to their clients, and he may be right. However, when evidence suggests that attorneys have participated in crimes, there has to be some mechanism to address that; no one is above the law, not even attorneys, after all. It has long been established that attorney-client privilege cannot be used to shield criminal activities between the attorney and client in question.
Dershowitz makes a better point in arguing that Cohen had been cooperating with Mueller’s investigators, which is what these guidelines suggest as an alternative. By conducting the raid, Dershowitz argues, the DoJ has effectively penalized Cohen for his prior cooperation. However, the question there is whether Cohen was being completely cooperative in this effort, and whether there was a risk of having evidence disappear without immediate intervention. The guidelines on alternative methods contain this caveat:
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.
One has to believe that a judge would look at these warrant requests with an especially skeptical eye when it comes to raiding the offices of attorneys. Judges are also attorneys, and likely many of them represented less than savory clients during their career. They might be more reluctant to grant the benefit of doubt in these cases than they would be in more routine warrant requests because of the impact and example it would set. Or at least one would hope so.
At any rate, it doesn’t appear that the privilege is dead, or even mostly dead, in this case. However, if this raid doesn’t turn up a smoking gun to justify the intrusion, the careers of some people in the DoJ will almost certainly be worse off than just mostly dead. Blaving is a dangerous business.