“Attorney-client privilege is dead,” President Donald Trump tweeted early Tuesday.
The outburst came a day after the FBI raided the New York office and hotel room of longtime Trump attorney Michael Cohen.
The FBI reportedly seized emails, tax documents and other records related to Cohen’s alleged payment of hush money to adult film actress Stormy Daniels and Playboy model Karen McDougal to keep them quiet about alleged sexual encounters with Trump.
The intrusion ignited not just the president's fury but also many of his supporters'.
Conservative commentator Laura Ingraham tweeted: “If by raiding the office of @realDonaldTrump’s attorney, the @fbi violated Trump’s attorney-client privilege, this is about to get really ugly.”
Like much of American law, the attorney-client privilege is rooted in English common law, according to Michael Frisch, an adjunct professor at the Georgetown University Law Center in Washington.
Exceptions to rule
“Without such a privilege," said the American Bar Association, "clients may not feel compelled to fully and openly communicate with their attorneys.”
But the privilege is not absolute, Frisch said.
“It has exceptions, and if the exceptions are met, evidence can be seized and admitted in a court,” Frisch said.
One exception is the so-called “crime-fraud” special case.
“Essentially, the privilege does not apply where the lawyer and the client are engaging in a crime or a fraud or the client is seeking assistance with respect to concealing a crime or a fraud,” Frisch said.
Another circumstance under which a lawyer can be searched is when he or she is the target of a criminal investigation. Cohen is reportedly being investigated for wire fraud, bank fraud, campaign finance violations.
While still rare, searches of lawyers’ premises occur regularly enough that the Justice Department has created guidelines for them, Frisch noted.
The policy is stringent. Prosecutors are asked to use search warrants as a last resort and only after they have exhausted all other legal options of obtaining the information they want from an attorney's office.
In Cohen's case, it is not clear why prosecutors believed they could not obtain the records they needed for their investigation without executing a search warrant.
Stephen Ryan, an attorney for Cohen, denounced the prosecutors' use of search warrants as "completely inappropriate and unnecessary” and said they resulted in the “seizure of protected attorney-client communications between a lawyer and his clients.”
The U.S. Attorney’s manual lays out guidelines for conducting such searches, from setting a high-level approval process to handling privileged communications inadvertently seized.
Before a search warrant application is submitted to a federal magistrate, a U.S. attorney or the head of the Justice Department’s criminal division must sign off. In Cohen’s case, prosecutors reportedly obtained the approval of deputy attorney general Rod Rosenstein, the Justice Department’s No. 2 official.
To minimize intrusion into privileged material, the search warrant must be drawn “as specifically as possible.” Agents responsible for conducting the search receive special instructions in order to ensure the prosecution is not “tainted” by any privileged material.
To further protect the process, a “privilege team” of agents and lawyers not directly involved in the investigation is set up to advise agents during the search and to mark communications that can't be touched.
“If an assigned prosecutor or an assigned agent obtains privileged information and reviews it, however inadvertently, they can be excluded from the investigation or the entire team could be tainted by the exposure to the privileged information,” said Eric Jaso, a former federal prosecutor and now a partner at the Spiro Harrison law firm in Short Hills, N.J.
Frisch said that Trump’s contention that the “attorney-client privilege is dead” reflects “an entirely unfair and inadequate understanding of what the privilege is.”
“It is not an absolute protection,” he said.
Jaso said that while “it is dangerous to speculate what evidence might have been presented” in connection with the search warrant application, he understood Trump’s venting.
“I think the president is responding in a very human way, simply saying, 'Hey, this is my lawyer,'” Jaso said. “I don’t think anybody among us would want government investigators poring through our own personal attorney’s personal records without any good reason.”