What Is Attorney-Client Privilege?
2018-04-11 21:57:46


President Donald Trump tweeted a message one day after the Federal Bureau of Investigation (FBI) took action against his lawyer.(1)

Trump tweeted, “Attorney-client privilege is dead.”(2)

The statement came a day after the FBI raided the New York office and hotel room of Trump’s attorney Michael Cohen.(3)

The FBI reportedly took emails, tax documents and other records.(4)

The records are believed to be related to Cohen’s alleged payment to two women who say they had sexual relations with Trump.(5)

One is the adult film actress Stormy Daniels. The other is a model, Karen McDougal.(6)

The raid angered the president and his supporters.(7)

Commentator Laura Ingraham tweeted: “If by raiding the office of @realDonaldTrump’s attorney, the FBI violated Trump’s attorney-client privilege, this is about to get really ugly.”(8)

Michael Frisch is a professor at the Georgetown University Law Center in Washington.(9)

He said, like much of American law, the attorney-client privilege is rooted in English common law.(10)

Common law comes from the decision of judges and courts over time.(11)

The American Bar Association says, “Without such a privilege,” clients may not feel they can speak openly with their attorney.(12)

But Frisch says the privilege is not absolute.(13)

“It has exceptions, and if the exceptions are met, evidence can be seized and admitted in a court,” he said.(14)

One exception is the “crime-fraud” special case in which an attorney and his client commit a crime or try to hide a crime,” said Frisch.(15)

Attornies can also be searched when they are a suspect in a criminal investigation.(16)

Cohen is reportedly being investigated for fraud, and campaign finance violations.(17)

Frisch said such cases are rare.(18)

But he said getting a search warrant for an attorney’s home or office happens often enough that the Justice Department has created rules for the action.(19)

The rules are strong.(20)

Prosecutors are asked to use search warrants as the last possibility and only after they have used all other legal ways of getting the information they want from an attorney's office.(21)

In Cohen's case, it is not clear why prosecutors believed they could not get the records they needed for their investigation without searching his office.(22)

Stephen Ryan is an attorney for Cohen.(23)

He said the prosecutors' use of a search warrant was "completely…unnecessary” and said they resulted in the “seizure of protected attorney-client communications.”(24)

The U.S. Attorney’s office rules for such searches include setting a high-level approval process and a process of storing information that is still privileged.(25)

A U.S. attorney or the head of the Justice Department’s criminal division must agree with the request for a search warrant before the request goes to a federal judge for approval.(26)

In Cohen’s case, prosecutors reportedly got the approval of deputy attorney general Rod Rosenstein, the Justice Department’s second highest official.(27)

To lessen the possibility that privileged material will be taken, the search warrant must be written “as specifically as possible.”(28)

FBI Agents responsible for the searches are given special procedures to follow to be sure prosecutors do not get any privileged material.(29)

To further protect the process, a “privilege team” of agents and attorneys who are not part of the investigation is set up.(30)

The team's job is to advise agents during the search and to point out communications that cannot be taken.(31)

Eric Jaso is a former federal prosecutor. He said, if an agent takes privileged information by mistake and reads it, that agent is removed from the investigation.(32)

The team also could be considered corrupted by seeing the privileged information.(33)

Frisch said that Trump’s tweet that the “attorney-client privilege is dead” is “unfair.”(34)

“It is not an absolute protection,” he said.(35)

Jaso said that he understood Trump’s anger.(36)

“I think the president is…simply saying, 'Hey, this is my lawyer,'” he said.(37)

He added that no one would want government investigators looking at their attorney’s records without a good reason.(38)

I’m Susan Shand(39)


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