H/T The Hill.

This could be the death knell for attorney client privilege.

There is much speculation as to the significance of the search of the offices and hotel room of President Trump’s lawyer, Michael Cohen. To obtain a search warrant, prosecutors must demonstrate to a judge that they have probable cause to believe that the premises to be searched contain evidence of crime. They must also specify the area to be searched, the items to be seized and, in searches of computers, the word searches to be used.

At least that’s the constitutional requirement in theory, especially where the Sixth Amendment right to counsel is involved, in addition to the general Fourth Amendment right against unreasonable searches. Yet, in practice, judges often give the FBI considerable latitude, relying on the “firewalls” and “taint teams” they set up to protect the subject of the search from violation of his or her constitutional rights.

But the firewalls and taint teams are comprised of government agents who themselves may not be entitled to read or review many of the items seized. It is an imperfect protection of important constitutional rights. That’s why Justice Department officials must be careful to limit the searching of lawyers’ offices to compelling cases involving serious crimes. We don’t know at this point what the prosecutors are looking for but, if it relates to payments made to porn star Stormy Daniels, that would not seem to justify so potentially intrusive a search of Cohen’s confidential lawyer-client files.

There are, of course, exceptions to the lawyer-client privilege. First, the lawyer must be acting as a lawyer, not as a friend or business associate. But the scope of a lawyer’s work is quite broad, encompassing much more than merely giving legal advice. It includes settling cases by making payments to potential litigants. Second, the lawyer must be engaged in lawful activities on behalf of the clients. Illegal or fraudulent activities are not covered by the privilege. Nor are communications with third persons, such as the lawyer for the other side, though such communications may be covered by the much weaker “settlement privilege.”

Civil libertarians should be concerned whenever the government interferes with the lawyer-client relationship. Clients should be able to rely on confidentiality when they disclose their most intimate secrets in an effort to secure their legal rights. A highly publicized raid on the president’s lawyer will surely shake the confidence of many clients in promises of confidentiality by their lawyers. They will not necessarily understand the nuances of the confidentiality rules and their exceptions. They will see a lawyer’s office being raided and all his files seized.

I believe we would have been hearing more from civil libertarians— the American Civil Liberties Union, attorney groups and privacy advocates — if the raid had been on Hillary Clinton’s lawyer. Many civil libertarians have remained silent about potential violations of President Trump’s rights because they strongly disapprove of him and his policies. That is a serious mistake, because these violations establish precedents that lie around like loaded guns capable of being aimed at other targets.

I have been widely attacked for defending the constitutional rights of a president I voted against. In our hyperpartisan age, everyone is expected to choose a side, either for or against Trump. But the essence of civil liberties is that they must be equally applicable to all. The silence among most civil libertarians regarding the recent raid shows that we are losing that valuable neutrality.

 

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