Donald Trump is very confused about attorney-client privilege

The privilege is alive and well.

CREDIT: Jim Lo Scalzo-Pool/Getty Images
CREDIT: Jim Lo Scalzo-Pool/Getty Images

The FBI raided on Monday the office, home, and hotel room of President Trump’s longtime personal attorney, Michael Cohen. The information seized reportedly includes communications between Cohen and his only client, Donald Trump.

Trump is not happy about this turn of events. On Twitter on Tuesday morning, he declared that the entire concept of attorney-client privilege is “dead.”

Trump is wrong. Like nearly all legal privileges, attorney-client privilege is “qualified”  — meaning there are some circumstances where it does not apply.

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Among the core exceptions to attorney-client privilege is the “crime-fraud exception,” which means that communications between you and your attorney about future criminal acts are not protected. This is a basic legal concept that has been recognized for decades. As a legal handbook on attorney-client privilege published last year explains:

The attorney-client privilege does not apply when a client consults a lawyer for the purpose of furthering an illegal or fraudulent act. United States v. Zolin, 491 U.S. 554, 563 (1989); In re Antitrust Grand Jury, 805 F.2d 155, 162 (6th Cir. 1986); In re Grand Jury Subpoenas Duces Tecum, 773 F.2d 204, 206 (8th Cir. 1985); United States v. Horvath, 731 F.2d 557, 562 (8th Cir. 1984); cf. Clark v. United States, 289 U.S. 1, 13-14 (1933). The so-called “crime-fraud exception” removes the protection of the attorney-client privilege for communications concerning contemplated or continuing crimes or frauds. This exception encompasses criminal and fraudulent conduct based on action as well as inaction.

Piercing attorney-client privilege is not something a U.S. Attorney’s Office takes lightly. In this case, someone at the office of the U.S. Attorney for the Southern District of New York, had to personally sign off on such a raid and obtained the approval of an Deputy Attorney General.

The search warrant would also have to have been approved by a federal judge. The judge would only approve such a warrant if he or she believed there was probable cause that the communications or material involved criminal conduct.

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The Justice Department will also undertake special procedures to ensure that materials protected by legitimate attorney-client privilege are protected.

Several Trump family members appear to have misguided notions about the scope of attorney client privilege and the scope of activities that it protects.

For example, when Donald Trump Jr. appeared in front of the House Intelligence Committee last December, he refused to discuss his conversations with his father about a meeting with Russian nationals in Trump Tower during the campaign. Trump Jr. justified the decision by noting that there was a lawyer in the room during the discussion with his father. As the Washington Post reported at the time:

Rep. Adam B. Schiff (D-Calif.) said Wednesday that Trump Jr. told the committee he did speak with his father about the Trump Tower meeting several days later, after emails showing he had accepted the meeting after being offered “dirt” on Clinton were made public. However, Trump Jr. declined to detail the conversation to the committee, indicating a lawyer had been present and he believed it was subject to attorney-client privilege.

This is not, however, a situation where attorney-client privilege applies. Trump Jr. was talking to his father, not a lawyer.

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“Any communications between the Trumps would not be protected, unless the two were effectively speaking jointly to a lawyer to obtain legal advice for both of them. That seems highly unlikely. And the mere presence of a lawyer in the room is legally irrelevant. This is likely a frivolous assertion of the privilege,” Samuel Buell, a professor at Duke University Law School, told the Washington Post.

Confusion about attorney-client privilege apparently runs in the family.

UPDATE: This post has been updated to reflect the fact that U.S. Attorney Geoffrey Berman recused himself from the matter. It also reflects new reporting that the raid was personally approved by Deputy Attorney General Rod Rosenstein.