The most significant news of the past week is the revelation on Monday that President Trump’s attorney, Michael Cohen, was the recipient of search warrants of his hotel room, his home and his office. Of course, tweets and other outbursts of outrage mention the attorney-client privilege, which some (including President Trump) say is being ravaged by these warrants.
I like most Americans have no idea what Michael Cohen has done to justify these warrants. Sources speculated that it focuses on a number of different topics such as Stormy Daniels, also known as Stephanie Clifford, and Karen McDougal, a former Playboy model. Others say the focus is on bank fraud and Cohen’s taxi cab service in New York. We can all speculate all day long about the focus of the investigation, but it appears it is unrelated to the investigation of Special Counsel Mueller since he referred the matter to the U.S. attorney for the Southern District of New York.
The U.S. attorney was appointed by the president, but at least one news agency is claiming that Geoffrey Berman, the U.S. attorney for New York, has recused himself from the investigation. Since he was appointed by the president, Mr. Berman probably thought he had a conflict of interest.
Before the fires of outrage become uncontained, a few important points should be remembered.
First, the warrants were issued by a magistrate judge in federal court only after the prosecutor presented evidence that there was probable cause to believe that Mr. Cohen had engaged in criminal activity. I suspect that whoever applied for the warrant and whoever issued the warrant made sure every I was dotted and every T was crossed. Those involved new that what they were doing would provoke a heated response from the president and his supporters and that they would be scrutinized. I suspect they were very cautious.
Second, while the attorney-client privilege is alive and well, it can be waived by the client, and there is also an exception called the crime-fraud exception. Justice Cardoza, one of the great Supreme Court jurists in American history, said in 1933 that the attorney-client privilege takes flight when the relation between an attorney and client is abused.
“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.”
Early cases suggested that a mere allegation of illegality was sufficient to “set the confidences free.” However, later rulings clearly set forth the standard that to “drive the privilege away” there must be “prima facie” evidence that it has some foundation. A case from English law decided in 1920 stated that when that evidence is supplied, the seal of secrecy is broken.
Justice Cardoza also said that the loss of the attorney-client privilege does not depend upon the showing of a conspiracy or that the client and attorney are involved equally. The attorney may be innocent and the client guilty, “but the guilty client must let the truth come out.” It is the client who holds the privilege and not the attorney. It is only the client who can waive the privilege.
Thus, the focus of the warrants for Michael Cohen’s hotel room and office may not be Mr. Cohen, but his client. The attorney requesting the affidavit might have submitted evidence that some client of Mr. Cohen and/or Mr. Cohen himself has committed a crime. It should be noted that Mr. Cohen has clients other than the president, although sources suggest that a focus of the warrants is upon the payments to the two ladies whose silence about alleged affairs was purchased.
It should also never be forgotten that the Fourth Amendment to the U.S. Constitution protects against unreasonable searches and seizures. The Fourth Amendment clearly establishes the boundaries of search and seizure under warrants: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Supreme Court has stated on numerous occasions that probable cause means less than evidence that would justify condemnation or conviction. However, law enforcement is not entitled to a presumption of reasonableness and any inferences from the evidence presented must be drawn by a detached and neutral magistrate.
Ultimately, if criminal charges result from the evidence obtained with a warrant, the inquiry is not complete. The trial judge then decides again if the warrant was properly issued. The judges are the gatekeepers of the Fourth Amendment, not law enforcement and prosecutors.
The fury will likely continue over the warrants issued at the crack of dawn last Monday in New York. Some have suggested Cohen was cooperating with the U.S. attorney and there was no need for the warrants. The problem with subpoenas or information provided voluntarily is that Cohen has control over the information provided. He lost control last Monday morning.
Bob Buckley is an attorney in Independence, www.wagblaw.com. Email him at firstname.lastname@example.org.