The news that the FBI raided the offices of President Trump’s personal attorney Michael Cohen Monday caused many people to wonder how such a raid could be justified given the protections afforded under attorney-client privilege.
“If by raiding the office of @realDonaldTrump’s attorney, the @fbi violated Trump’s attorney-client privilege, this is about to get really ugly,” tweeted conservative Fox News host Laura Ingraham.
Right-wing commentator Kurt Schlichter said “federal agents are stealing and reading communications between an attorney and his client” and radio host Buck Sexton said, “Attorney client privilege is apparently meaningless in this era of get Trump at all costs.”
But former U.S. attorney and deputy assistant attorney general Harry Litman said the way the FBI handled the raid actually showed the seriousness with which the Department of Justice treats material that might be protected by attorney-client privilege.
“It’s very unusual for the Department of Justice to permit prosecutors to raid an attorney’s office and that’s because you want to be careful not to get privileged material,” said Litman, who teaches at the UCLA School of Law and continues to practice at the law firm Constantine Cannon.
The only way the prosecution would be permitted to examine any material that might otherwise fall under the attorney-client umbrella is if it is determined to be part of a crime jointly undertaken by the attorney and the client. But for the privilege to be nullified, Litman said the taint team would have to get the approval of the court to present the material to the prosecution.
Another reason raids on attorney’s offices are rare is that they can easily come back to haunt the prosecution.
“If you go to the attorney’s office and you look at attorney-client privileged material by mistake, you’re in a world of hurt,” Litman said. “You’re going to get disqualified from the whole matter and the whole prosecution could go down the tubes.”
And if the potentially privileged material is challenged, the burden of proof is on the prosecutors to show that they made “zero use of privileged material” and their investigation was not in any way influenced by it.
“Then, if you lose that fight, it’s quite possible that anybody who’s seen that document is off the case,” Litman said. “So, you’re playing with fire.”