Originally posted by the Voice of America.
Voice of America content is produced by the Voice of America,
a United States federal government-sponsored entity, and is in
the public domain.


What Is Attorney-Client Privilege?

by Masood Farivar

   WASHINGTON --

   "Attorney--client privilege is dead," President Donald Trump tweeted
   early Tuesday.

   The outburst came a day after the FBI raided the New York office and
   hotel room of long-time Trump attorney Michael Cohen.

   The FBI reportedly seized records related to Cohen's payment of hush
   money to adult film actress Stormy Daniels during the 2016 election to
   keep her quiet about a sexual encounter she allegedly had with Trump
   ten years earlier.

   The raid ignited not just the president's fury but also the ire of many
   of his supporters.

   Conservative 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."

   The attorney-client privilege is an old privilege grounded in American
   law. Originally designed to protect attorneys, it has evolved into the
   sole protection of clients.

   "Without such a privilege, clients may not feel compelled to fully and
   openly communicate with their attorneys," according to the American Bar
   Association.
   Exceptions to rule

   But the privilege is not absolute, said Michael Frisch, an adjunct
   professor at the Georgetown University Law Center in Washington.

   "It has exceptions and if the exceptions are met, evidence can be
   seized and admitted in a court," Frisch said.

   One exception is the so-called "crime-fraud" special case.

   "Essentially, the privilege does not apply where the lawyer and the
   client are engaging in a crime or a fraud or the client is seeking
   assistance with respect to concealing a crime or a fraud," Frisch said.

   Another circumstance under which a lawyer can be searched is when he or
   she is the target of a criminal investigation. Cohen is reportedly
   being investigated for wire fraud, bank fraud and campaign finance
   violations.

   While still rare, searches of lawyers occur regularly enough that the
   Justice Department has set guidelines for them, Frisch noted.

   The policy is stringent. A search warrant is to be used as a last
   resort, the guidelines advise, and only after prosecutors have
   exhausted all other legal methods of obtaining the information from an
   attorney.

   In Cohen's case, it is not clear why prosecutors believed they could
   not obtain the records they needed for their investigation without an
   otherwise intrusive search warrant.

   'Unnecessary seizure'

   Stephen Ryan, an attorney for Cohen, called the prosecutors' use of
   search warrants "completely inappropriate and unnecessary."

   "It resulted in the unnecessary seizure of protected attorney client
   communications between a lawyer and his clients," Ryan said in a
   statement on Monday. "These government tactics are also wrong because
   Mr. Cohen has cooperated completely with all government entities,
   including providing thousands of non-privileged documents to the
   Congress and sitting for depositions under oath."

   The Justice Department guidelines are designed to prevent the search
   and seizure of privileged communications.

   Before a search warrant application is submitted to a federal
   magistrate, a U.S. Attorney or the head of the Justice Department's
   criminal division must sign off. In the case of the Cohen search
   warrant, Deputy Attorney General Rod Rosenstein, the department's No. 2
   official, reportedly signed off.

   To minimize intrusion into privileged material, the search warrant must
   be drawn "as specifically as possible." Agents responsible for
   conducting the search receive a special instructions in order to ensure
   the prosecution is not "tainted" by any privileged material.

   'Limited review'

   However, the guidelines allows for "limited review" of material to
   determine whether it is covered by the warrant.

   To further protect the integrity of the process, a "privilege team" of
   agents and lawyers not directly involved in the investigation is set
   up. Privilege team lawyers may be available onsite or offsite to advise
   agents during the search.

   If privileged material is believed to have been searched and seized,
   the lawyer can ask a judge to suppress it as evidence in court.

   "The question of whether or not the search was proper, whether the
   scope of the search was followed, whether it violated the
   attorney-client privilege, those are still open questions," Frisch
   said.

   Frisch said that Trump's contention that the "attorney-client privilege
   is dead" reflects "an entirely unfair and inadequate understanding of
   what the privilege is."

   "It is not an absolute protection," he said.

   Eric Jaso, a former federal prosecutor, said Trump was merely reacting
   "in a very human way."

   "I don't think anybody among us would want government investigators
   poring through our own personal attorney's personal records without any
   good reason," Jaso said.