Attorney–client privilege is dead! So wrote President Donald Trump in response to the federal raid on his attorney Michael Cohen’s office, hotel room, and home.
Many of us will switch channels when discussion turns to the topic of the raid. Some will dismiss it as another presidential rant or an overly zealous Department of Justice. None of that is true. This matters and it matters for each one of us living in the United States. Regardless of which side you take in this legal drama, these actions matter because they have long-term consequences for our legal system and how YOU are treated by police and prosecutors if you step on the wrong side of the law.
As in all controversies, there are two sides to this story. Alan Dershowitz, the well-known Harvard law professor has taken a Trumpian stance. Dershowitz bases his opinion on the 4th, 5th, and 6th Amendments to the US Constitution and writes, “The Fifth Amendment is an exclusionary rule. By its terms, it prevents material obtained in violation of the privilege of self-incrimination from being used to incriminate a defendant – that is, to convict him or her of a crime.
But the Fourth and Sixth Amendments provide far broader protections: they prohibit government officials from in any way intruding on the privacy of lawyer-client confidential rights of citizens.
In other words, if the government improperly seizes private or privileged material, the violation has already occurred, even if the government never uses the material from the person from whom it was seized.”
The counter argument is set forth in Politico, whose author writes, “As a starting point, the search of Cohen’s office suggests that he is in very serious legal jeopardy. A federal judge would not have issued the search warrant unless the judge concluded that there was good reason to believe that a crime was committed and that evidence of that crime existed in Cohen’s office. That’s bad news for Cohen, who is reportedly under investigation for bank fraud, wire fraud and campaign finance violations. What’s even worse news for Cohen is that federal prosecutors rarely use search warrants in order to obtain documents in white collar investigations. Typically, they use subpoenas that force the defense to review documents and provide only relevant, non-privileged documents to the government that are organized and formatted so the government can easily access them. (In fact, procedures require prosecutors to “take the least intrusive approach” by considering subpoenas instead of warrants.) If prosecutors resorted to a search warrant in this case, it means they had reason to believe Cohen would not have turned over the appropriate documents via subpoena. In other words, it suggests they have evidence that he tried to obstruct their investigation or mislead investigators.”
Politico reasons that this isn’t about attorney-client privilege because the target of the raid concerned potential criminal behavior on the part of Michael Cohen, who happens to be Trump’s lawyer.
Unsurprisingly, Professor Dershowitz sees it differently. He views the entire raid within the scope of attorney-client privilege which should be sacrosanct. If what he argues is indeed true, then everyone should be concerned. It means that any communication between an attorney and a client may be subject to governmental review, a clear violation of the Constitution.
Alan Dershowitz makes clear the high stakes in this saga. “If the ordinary citizen sees that even the president’s confidential communications with his lawyer can be seized and perused, he or she will be far less willing to engage in such communications. As a society we value such communications; that is why our laws protect them and that is why it should be extremely difficult for the government to intrude upon them, except as a last recourse in extremely important cases.”