News of the FBI’s raid on the offices and home of President Donald Trump’s attorney Michael Cohen immediately raised the question over how federal agents and prosecutors will be able to navigate the sacrosanct attorney-client privilege.
Trump himself weighed in early Tuesday to tweet, “Attorney–client privilege is dead!”
Attorney–client privilege is dead!
— Donald J. Trump (@realDonaldTrump) April 10, 2018
Long live the crime-fraud exception https://t.co/1nnqZegqfF
— Preet Bharara (@PreetBharara) April 10, 2018
That’s not quite the case, as made evident in the wake of the FBI’s raid, by the proliferation of crime-fraud exception finding its way into social media postings and think pieces. In reality, according to numerous former prosecutors and current white-collar practitioners, while the move to execute a warrant on an attorney—especially Trump’s attorney—is a rare and sober action, it also comes with substantial protections of the attorney-client privilege.
Serving a subpoena or executing a warrant in the case of Cohen requires the highest levels of approval—not just from the U.S. attorney himself, but from Main Justice. The U.S. attorney’s manual and DOJ policy requires special authority be sought and granted under the probable cause standard. This is before it even goes to a judge to sign off.
“They really make you demonstrate that you need this potential evidence to make your case,” said Jennifer Rodgers, executive director of the Center for the Advancement of Public Integrity at Columbia Law School and a former prosecutor out of the Manhattan U.S. Attorney’s Office. “They would have had to demonstrate that there’s a reason they can’t trust Michael Cohen or his attorney.”
In application, the use of the exception to overcome the attorney-client privilege has a few basic requirements. The most critical benchmark for its application is toward communications between a client and an attorney in furtherance of a crime. These include communications in which the attorney was unaware of their role.
The information gathered by the government will be handled by a so-called taint team—prosecutors and investigators not involved in the primary investigation who will review what was gathered.
It’s here where the focus on crime-fraud exceptions may be missing the mark, according to some observers. First of all, the government executed a warrant, but the action is unattached to charges, at this point. More importantly, these attorneys noted, while the crime-fraud exception may be the most concerning issue for authorities—making sure they preserve that which should remain privileged so as not to damage the case going forward—it remains unclear how much of the target of the sealed warrant even targeted these communications.
“There are any number of scenarios in which crime-fraud exception is never going to come up here,” said Hughes Hubbard & Reed partner Marc Weinstein.
There are ample potential pieces of evidence that could have been in Cohen’s possession that aren’t subject to privilege. They include documents being held by clients, or communications involving a client that also include third-party individuals, according to the attorneys. In other words, long before the issue of crime-fraud waivers get brought up, federal investigators may have gotten some or most of what they came looking for, depending on what was in the warrant.
That being said, the taint team will work to separate things into three categories, according to a former prosecutor with experience running the process. The items the team feels are clearly not privileged will make their way to the original investigative team. Then the taint team, which those familiar with the process believe will apply an abundance of caution, will put aside any materials that appear to be privileged, or debatable enough to err with caution.
The remaining communications and documents that contain an attorney-client privilege but which the taint team believes is subject to the crime-fraud exception will then be dealt with.
Case law in the U.S. Court of Appeals for the Second Circuit outlines clear guidelines here. For example, a panel’s decision in 1994’s In re John Doe firmed up the idea that probable cause was required to invoke the crime-fraud exception. The following year, the court established the need for the communication to show the furtherance of a crime.
Simply discussing a crime would make privilege “virtually worthless,” the court said. The appellate court also established the need for a discreet review of communications—casting a broad net wasn’t to be allowed.
For now, Cohen’s attorney, McDermott Will & Emery partner Stephen Ryan, likely has few options before him. One of the first is to “try and get a copy of [the] documents back,” according to Patterson Belknap Webb & Tyler partner Harry Sandick. Similarly, legal observers said Cohen will want to get his hands on a copy of the warrant as soon as possible.
From there, an attorney can begin to strategize. What was the government entitled to look for? What would be beyond the scope? What plain-view issues may arise?
Defects in the warrant, whether on its face—not all the “i”s dotted, or “t”s crossed—or in the vagueness of what’s being looked for, would also be looked for. There’s the possibility of filing a Rule 41 motion, for unlawful search and seizure, though one former prosecutor likened the move to “poking the bear.”
“Under most circumstances you would wait to see what the government does, and then litigate your grievance to try and get the evidence suppressed or not used,” the person said.
These are, of course, not most circumstances, but it remains to be seen—absent charges—what legal strategies Cohen opts to employ. Most attorneys agree that being an early and constant presence in the lives of investigators is critical for Cohen.
“You definitely want to try and put the government on the defensive a little bit and make sure they’re being extra, extra careful on these issues,” said Clifford Chance partner Daniel Silver, who added that Cohen and others similarly situated are “at the mercy of the government to a large degree.”
“I would certainly assume that the government is going to be very careful to abide by its obligations,” he said.