Attorney–client privilege is dead!— Donald J. Trump (@realDonaldTrump) April 10, 2018
For those of you not following the story, on Monday, April 9, 2018, the Federal Bureau of Investigation seized materials from the office of President Trump's personal attorney, Michael Cohen (of the Stormy Daniels affair payoff), in furtherance of an investigation into allegations of fraud and campaign-finance violations against Cohen. And by Tuesday morning, the President had made his feelings on the situation known on twitter.
To understand the conflict, it's important to understand what the attorney-client privilege covers, and more importantly, what it does not. First, however, we must recognize that the privilege itself is an exception to the general rule. Our courts and our discovery process in cases is designed to get to the truth and to make it available to all parties in the suit, where possible. "The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense." United States v. Nixon, 418 U.S. 683 (1974). The attorney-client privilege is then an exception that allows us to withhold truthful evidence from the court and the other side because we have recognized a countervailing interest. We therefore do put strict limits on the exercise of attorney-client privilege in order to balance the interests of the full disclosure of the truth and the encouragement of frank discussion with counsel.
The attorney-client privilege is designed to encourage free and open dialogue between a person and their attorney in regard to legal matters like a lawsuit, criminal proceeding, or legal transaction (will, trust, deed, etc.). Generally, there are five recognized components that are required to be met for the attorney-client privilege to "attach" and allow protection of the communication:
- a client,
- an attorney,
- a communication,
- for the purpose of legal advice or assistance, and
- an expectation of confidentiality
The client is the person seeking legal advice, here the President.
The attorney can refer to a lawyer specifically or one of the attorney's agents or subordinates acting on the attorney's direction. So it could refer to an attorney's paralegal, even though they do not have a legal license to act as an attorney. Again, here we are referring to Michael Cohen, the President's personal counsel.
The communication can refer to communication from client to attorney, from attorney to client, or between attorneys of the same client. It can be oral or written or electronic, anyway the information can be passed between the attorney and client. It can also specifically refer to only a part of a communication, such as where an email between attorney and client discusses the prior night's game and then discusses the case.
The purpose requirement refers to the primary purpose of the communication. Was the primary purpose of the communication to either seek or receive legal advice from the attorney? This is where the many exceptions to the attorney-client privilege come in to play, as not every communication with an attorney can meet this requirement.
For example, a purely business discussion, even where the attorney is relaying business advice ("I agree we should invest in that company") is not covered by the attorney-client privilege. You can think of it as the attorney wearing a different hat. In this type of communication, the attorney is wearing a business hat and not relaying "legal advice." This non-legal type of communication can also cover things like information on how to secure funds or where to wire money - purely instructional information.
Further, there is an exception that prevents the privilege from being used to further a crime and circumvent the legal system - the crime-fraud exception. We do not protect communications that are used to commit or further a crime. A mafia don cannot tell his attorney to go whack a guy. You cannot use an attorney to create a knowingly false affidavit to defraud or commit perjury. You cannot privilege a communications with an attorney used to set up a ponzi scheme to defraud an insurance company, and so forth and so on. We do not protect these communications because the goal of discovery is to get at the truth. And the attorney-client privilege is already a narrow exception to our general discovery preference to get the truth out there. We're not going to use it to knowingly protect falsity or other crimes.
And finally, there must be an expectation of privacy in the communication. This is generally covered by the formalization of legal representation, where the attorney and the client are in agreement that there is an attorney-client relationship and the information shared will be kept confidential. Anything that is shared outside of that relationship is not privileged. So if the attorney shares information with the other side (another party) in settlement hopes, in seeking further information, etc. the information that is shared can be discovered.
Also, please note that the attorney-client privilege is limited in scope of subject to the particular legal assistance needed and limited in scope of parties to the individual (or group) client specifically represented by the attorney (someone else cannot claim my privilege for me - I can claim it or waive it as desired). Put another way, if I hire an attorney to help with tax issues and the IRS, my representation is limited to that matter and so is the privilege. Other information I may have shared in passing, unrelated to this particular IRS matter, would not be covered. Despite popular opinion, you cannot claim an attorney is representing you for "all matters" that may arise. This even can extend to separate but related criminal matters (John Gotti got in trouble for this one). Legal representation and privilege is looked at in relation to the specific matter.
All this to say, with the files obtained from the President's personal attorney, it is way too early to determine if the attorney-client privilege has been violated. With everything outlined above, there is the potential that there is a lot of information that could be obtained from his attorney without implicating the attorney-client privilege at all. Additionally, there are questions as to whether the crime-fraud exception may be implicated. If the President sought Cohen's advice regarding the affair with Stormy Daniels to avoid federal campaign-finance laws, to conceal the true source of the funds with which she was paid, or to threaten her into silence, then it is very likely the crime-fraud exception will require disclosure of those communications. It appears possible that the FBI and attorneys in New York that obtained the warrant to seize the documents in Cohen's office may have already made such a showing to a federal magistrate.
And that raises my final point, this whole seizure had to go through a very complicated approval process including officials in the highest levels of the Justice Department. Deputy Attorney General Rod Rosenstein signed off on it personally. Any materials obtained from this seizure are likely going to require review by a "clean team" - a separate team of attorneys and investigators distinct from the ongoing prosecution against Cohen assigned to assess potential privileged content and determine what can lawfully be produced and used in the broader investigation.
The whole process so far has been an example of how our legal process works in an acknowledged rare situation. It's time to observe the process closely and ensure that it is handled with the most delicate care. Because ultimately, the truth will out.
* - This is an important note, particularly for this post. This post does not constitute legal advice, nor does it create a legal relationship where attorney-client privilege could attach. You cannot rely on this post for any legal proceeding you may have, please seek your own independent legal counsel for that. This is a rant and a high level overview. Nothing more.