Warrants and Privilege: Legal Questions About the Raids on Trump’s Lawyer

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What is lawyer-client privilege?

Most of the time, if someone possesses information that is relevant to getting at the truth about a suspected crime, the rules require that person to disclose such evidence, and prosecutors can use those facts in court. But courts have created exceptions to protect confidential communications between a client and a lawyer and a lawyer’s work product on behalf of a client, like notes and files the lawyer gathered in anticipation of litigation.

The idea, said Samuel W. Buell, a former federal prosecutor who teaches white-collar criminal law at Duke University, is that it is generally in the broader public interest to encourage people to consult lawyers and talk candidly with them. That way, lawyers can steer their clients toward lawful conduct in the first place, and better-informed lawyers will make the legal system function more smoothly.

Against that backdrop, Mr. Buell said, the search warrant for Mr. Cohen’s office was “not going to happen unless they feel that they have to, and they think they have something that is really serious going on.”

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“I would say that for any law-office search warrant,” he continued, “but we just happen to be talking about a lawyer for the president of the United States.”

Are all files in a lawyer’s office privileged?

No. Only materials that contain confidential communications between a lawyer and a client, or lawyer-client work product undertaken in anticipation of litigation, are potentially privileged. Since the public does not know the details of what law enforcement officials are looking for, that adds a layer of complexity to making sense of the raid.

“It bears remembering that not everything in Michael Cohen’s office, home or hotel is even covered by the privilege to begin with,” said Miriam Baer, a former federal prosecutor who teaches white-collar criminal law at Brooklyn Law School. “There are a lot of papers, data or files that could be in Michael Cohen’s office that don’t fit the definition of privilege.”

Are all lawyer-client materials off limits?

No. In certain cases, lawyer-client materials do not receive special legal protections. One of them is called the “crime-fraud exception.” Under this doctrine, the privilege does not protect lawyer-client materials in situations in which the lawyer was helping the client commit a continuing or planned crime or fraud, since that would not serve society’s goal of ensuring lawyers can render sound legal advice. If the judge who signed off on the warrant invoked that doctrine, it would be “extremely significant,” said Katrice Bridges Copeland, a law professor at Pennsylvania State University and a former white-collar defense lawyer.

“To have gotten this search warrant means they are finding that there was no separation between the attorney and the client, meaning they were working together in furtherance of a crime or some sort of fraud to cover up some previous crime,” she said. “That is a big deal. It’s not easy to make that showing to the court and get a search warrant on an attorney.”

What if the government gets more than it should?

When the government seizes materials and sorts through them itself, it carries the risk that officials may see confidential files about unrelated cases or material that is covered by a valid claim of lawyer-client privilege. A defense lawyer could later use that to try to get a case dismissed. To mitigate that risk, the manual says the Justice Department is supposed to create a separate “taint team” of officials who will go through the materials first. They are not supposed to tell their colleagues working on the main case what they saw in any files they end up setting aside. If the search is contested, a judge might review the materials the taint team decides are relevant before the main case team gets to see them.

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Who must sign off on a search warrant for a lawyer’s files?

The manual requires high-level supervisory approval — such as from the head of the Justice Department’s Criminal Division. In this case, the search warrant was personally approved by an even higher-ranking official, Rod J. Rosenstein, the deputy attorney general, according to three officials. Because Attorney General Jeff Sessions recused himself from criminal investigations arising from the 2016 election, Mr. Rosenstein is the acting attorney general for such matters and also appointed and oversees Mr. Mueller.


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