Today’s political climate is hyper-partisan. Whether one supports or opposes the current administration is irrelevant; however, recent legal developments should give one pause.
The most recent round of politically motivated charges that this or that politician is a foreign agent or subscribes to Leninist or Hitlerian political opinions is beside the point. The issue is more significant than that. I am referring, of course, to the Attorney-Client privilege.
Privilege and Confidentiality in the Modern Political Climate.
Michael Cohen had his law office’s records seized by government officials investigating various tax and administrative offenses. Many perceived these inquiries as cover for investigations of political scandals. However, even public figures are entitled to the protection of information that is either privileged or confidential. This is true whether they are an aging porn star or a president unpopular with the supporters of the other major political party.
When the government seized Cohen’s records, government actors got access to a lot more than the tax schemes or taxi medallion offenses for which Cohen was personally under investigation. Federal prosecutors admitted that they seized ten (10) boxes of files, and more than twelve (12) electronic devices from Cohen. The vast majority of the seized records contained information probably unconnected to the evidence the search warrant sought, and much of it covered by the attorney-client privilege.
The Cohen case is far bigger than anything regarding the administration or Mr. Cohen personally. The issues raised go right to the heart of the question of how to protect client rights in our hyper-partisan, highly digital, and over-reported age.
The federal judge in the case appointed a “special master” to review the material to determine what was and was not relevant to the warrants issued against Cohen. A “special master” is an independent attorney not associated with either litigant – the government or the defense in Cohen’s case. The special master reviews the seized records and determines what falls within privilege or the warrant. The special master then reports to the court, passing along to the government such information not covered by privacy or privilege. Lawyers for all sides could then raise issues regarding the special master’s handling of the documents seized.
The problem here is that many people saw the privileged information, including the judge, the special master, the police, the prosecutors. They are all third-parties who did not have the client’s consent to see those documents or communications.
U.S. Department of Justice Regulations require a search warrant for the premises of an attorney under federal investigation, but who also is or may be engaged in the practice of law on behalf of clients. The Department of Justice recognizes the potential of this type of search to impact legitimate attorney-client relationships that, during such a search, the government may take possession of material protected by attorney-client privilege or confidentiality.
Federal regulations require prosecutors to take the least intrusive approach consistent with legitimate law enforcement goals when seeking evidence from a practicing attorney, such as issuing subpoenas. Where such less intrusive means would compromise the criminal investigation or prosecution, or result in the obstruction or destruction of evidence, or would otherwise be ineffective, then and only then should actual seizure of records be undertaken.
In Trump’s relationship with Cohen, the presumption of the government was that the “crime or fraud” exception to privilege is operative. After all, “[a] client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.”
However, if the question is whether Trump authorized “hush money” payments to Stormy Daniels (a.k.a. Stephanie Gregory Clifford,) the matter becomes a little murky. The crux of the “crime or fraud” exception is that the government can prove the existence of an underlying crime or fraud. The government can then compel the attorney to testify regarding the attorney’s interaction with the client as it relates to the underlying crime or fraud.
The problem in the Daniels matter is that even supposing that Trump paid Daniels off – it is undisputed that Trump did so while a private citizen, using his own money, and he did so, at least in part, to protect his personal reputation. None of those acts are in dispute and none are criminal or fraudulent. So long as Trump was motivated, at least in part, to protect his personal reputation or marriage, the payments do not constitute a campaign expense or contribution. It is legal to pay hush money out of one’s own pocket and it is legal to hire an attorney to facilitate it. It is even legal to lie about such payments to the press. There was simply no underlying “crime or fraud” for which Trump is alleged to have sought Cohen’s services to facilitate.
The Cohen case is, therefore, more significant than the current president or any political objective of any party or partisan. The case goes to the heart of the individual’s ability to seek advice or aid from a lawyer free of the fear that his or her personal secrets will be uncovered.
Should your secrets be put at risk of disclosure simply because your lawyer has other clients that are controversial or targeted by powerful interests for one reason or another? What would stop the “special master” from making a referral or perhaps one of the raiding law enforcement officers reads the file and opens a new investigation? What if that further investigation leads to additional legal difficulties? These are all issues that would never have arisen had not a state actor had inappropriate access to the attorney’s records.
Much of the blame for the breaches of confidentiality or privilege in the Cohen case belongs to Mr. Cohen. Mr. Cohen made numerous inappropriate public statements about several of his clients. Mr. Cohen also made improper recordings of several of his clients for reasons that remain unclear and may have been made for unethical purposes.
Mr. Cohen’s ethical shortcomings notwithstanding, an entity as powerful as the United States government can manage a tax evasion investigation or taxi medallion scam investigation without trashing the principle of confidentiality or attorney-client privilege. The federal government’s sheer volume of financial and other records on every citizen ought to make the task manageable, at the very least.
No matter how much (or how little) one may dislike the person or policies of the current occupant of the White House, it is important to keep the big picture in mind. No one is above the law; however, no one is beneath the law either. We must never let partisan passions of the moment permanently damage the protections upon which our legal system and individual rights rely.
 Brett Max Kaufman, Michael Cohen’s files need independent review, Washington Post, 2018.
 Devlin Barrett & Rosalind Helderman, Federal judge appoints special master to review material seized from Trump lawyer Michael Cohen, Washington Post, 2018.
 U.S. Attorney’s Manual §9-13.420 – Searches of Premises of Subject Attorneys
 Clark v. United States, 289 U.S. 1 (1933),
 United States v. Grand Jury Investigation, 401 F. Supp. 361, 369 (W.D. Pa. 1975).