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By: Gregory T. Fayard
On April 9, 2018, federal agents raided the law office of Michael Cohen, President Trump’s personal attorney. The purpose of the raid purportedly concerned a payment made to porn actress Stormy Daniels related to an alleged 2006 affair she had with Donald Trump in exchange for her silence. The FBI’s aggressive move certainly raised eyebrows among legal ethicists. Wouldn’t the FBI be prevented from reviewing a lawyer’s files based on the sacrosanct attorney-client privilege? After all, the attorney-client privilege is intended to allow lawyers to give honest legal advice without worrying about incriminating a client.
Not necessarily. To obtain a federal search warrant of an attorney’s office, high-level approval within the Justice Department must be obtained and special DOJ guidelines must be followed when the search target is an attorney. The warrant was also reviewed and approved by a federal judge. Further, attorney client communications may be discovered under the rarely used and hard to meet “crime-fraud” exception to the privilege. That is, a client cannot hide evidence of a crime by relying on the attorney-client shield. The concern for the Justice Department is whether any evidence from the raid will be admissible if “tainted” by the “fruit of the poisonous tree.” To deal with spoliation through “tainted” evidence, the Justice Department has used “taint teams”—government attorneys who are segregated from FBI agents and prosecutors involved in the investigation. (“Taint Teams and the Attorney-Client Privilege,” Loren E. Weiss, Gregory S. Osborne, December 2015) Taint teams are charged with sifting through seized files and determining what prosecutors can and can’t use. (Id.)
In rare cases, a judge could appoint an independent special master to review the files or examine seized documents him or herself. (United States v. Taylor (D. Me. 2011) 764 F.Supp.2d 230.) Further, prosecutors can seize evidence of criminal activity that lies beyond the scope of a warrant if it is in plain view, like drugs, guns or other contraband—not likely at issue here.
In any event, Mr. Cohen will certainly contest the FBI raid as an overreach, including why the Justice Department did not issue a subpoena instead of a search warrant. A subpoena would give Mr. Cohen time to protect client confidences and seek court guidance on the attorney-client issues. While the FBI seems to be pushing the envelope as to the bounds of the attorney-client privilege, others have critiqued the raid as going beyond the scope of Robert Mueller’s Special Counsel investigation into collusion between Russia and the Trump Campaign.
If you have any questions or would like more information, please contact Greg Fayard at [email protected].