ON THE morning of April 10th, a day after the FBI raided the office and home of his personal lawyer, Michael Cohen, President Donald Trump declared on Twitter: “Attorney-client privilege is dead!” Moments later he tweeted, “A TOTAL WITCH HUNT!!!” It is true that communications between a lawyer and client are ordinarily protected from the prying eyes of investigators. The attorney-client privilege means that a client can speak candidly, providing his lawyer with information necessary to develop an effective legal strategy. Even an admission of having committed a crime in the past must be kept in confidence. How then did the FBI secure a warrant to raid Michael Cohen’s papers?
Several carve-outs limit the reach of the attorney-client privilege, and it appears that a “crime-fraud” exception—which covers any communication containing evidence that a client or lawyer is committing or planning to commit criminal or fraudulent activity—was at play in this raid. Communications between the parties showing that the lawyer-client relationship “was used in furtherance of the alleged crime or fraud” also fall outside the protective umbrella of attorney-client privilege. In Mr Cohen’s case it has been reported that the evidence sought by investigators relates to bank fraud and campaign finance violations. Particular attention has fallen on a $130,000 payment the lawyer made to Stephanie Clifford, a porn star also known as Stormy Daniels. Ms Clifford said she received the money just before the 2016 presidential election in exchange for staying quiet about a sexual tryst she claims to have had with Mr Trump. Both Mr Cohen and Mr Trump have said the affair never happened, but Mr Cohen acknowledges paying Ms Daniels the $130,000 from his personal account. When asked last week why his lawyer had paid Ms Clifford the six-figure sum, Mr Trump denied knowing anything about it. “You’ll have to ask Michael Cohen”, he said.
In the raid on April 9th, the FBI took e-mails, business records and other documents related to that payment, according to the New York Times, which broke the story. Investigators also reportedly sought records of a $150,000 payment made by American Media, the parent company of the National Enquirer, to Karen McDougal, a former Playboy model who says she had an affair with Mr Trump in 2006. If those communications show that Mr Trump knew about hush money paid to the women and conspired to deliver it, they could be construed as evidence of facilitating unreported contributions to his campaign—a felony.
The FBI would not have been able to conduct the raid based on a mere hunch that Mr Cohen was engaged in a plot with Mr Trump or his aides. In order to secure the search warrant, the lawyers at the US attorney’s office for the southern district of New York—which received the tip from Robert Mueller, the special counsel investigating possible connections between Mr Trump’s campaign and Russia—had to persuade a magistrate judge that a less dramatic plan to access Mr Cohen’s files would be unlikely to work. Ordinarily, prosecutors use the subpoena power to elicit evidence. But where suspicion of wrongdoing is strong, and there is cause to worry that evidence may be withheld, tampered with or destroyed, a judge may approve more aggressive action. Ken White, a former assistant US attorney wrote that this is “a very fraught and extraordinary move” that could not have happened without “multiple levels of authorisation within the Department of Justice”. In Mr Trump’s estimation, the FBI raid on his “fixer” lawyer was “disgraceful” and “an attack on our country”. But government lawyers, a judge and Rod Rosenstein, the deputy attorney-general, who allowed Mr Mueller to pass his discoveries about Mr Cohen to the US attorney, clearly believed that the raid was necessary. The FBI is now going through Mr Cohen’s papers.