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What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office[W:46]

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What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

stormy-daniels-michael-cohen-trump.jpg

Trump lawyer Michael Cohen ... the Middleman

April 9, 2018

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 Donald Trump'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. In order to get the OK to raid Cohen's office, prosecutors would have had to get approval from high up — in this case from Deputy Attorney General Rod Rosenstein — and demonstrate to a federal magistrate both probable cause and the need for a warrant instead of a subpoena (such as a concern that Cohen might destroy evidence), Litman explained.

In addition, the probable cause would have to relate to a crime centered on Cohen, not Trump or someone else. "You can’t use it as end run around to get to the client," Litman said. There will also be a "taint team" to examine everything before it is handed over to prosecutors to make sure that those conducting the case never see any material that might be "tainted" by attorney-client privilege. In order to fall under attorney-client protection, the documents just have to be related to Cohen dispensing legal advice or gathering information in order to give that advice, Litman said. But merely having an attorney involved does not guarantee the protection. "It can’t just be that somebody with the bar degree is in the general vicinity," Litman said. Based on his experience with cases involving issues of attorney-client privilege, Litman said is likely that the prosecution never sees 80% or more of the documents. 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."

So far, the Cohen action has not crossed any legal red lines.

1) The investigative team of Special Counsel Robert Mueller came across potentially criminal activity of Trump attorney Michael Cohen.
2) Mueller presented all relevant information to his supervisor, US Deputy Attorney General Rod Rosenstein.
3) After reviewing all material(s), Rosenstein assigned the case to the US District Attorney for Southern New York.
4) The SDNY DA reviewed the material(s) and agreed that there existed probable cause for further action.
5) SDNY prosecutors drew up an affidavit and requests for search warrants on numerous locations.
6) SDNY prosecutors presented their documents to a Federal judge.
7) The judge agreed that probable cause existed and signed the search warrants.
8) Furthermore, the judge agreed that there existed a very real possibility that Cohen may attempt to hide or destroy evidence.
9) The FBI raided numerous locations without warning, confiscating Cohen computers, thumb drives, e-mails, fax's, phones, paper documents, and tax documents.
10) A team of FBI agents with no relation to either the Mueller investigation or the SDNY investigation will cull the confiscated materials and
separate what is pertinent to the affidavit from what is not. What is not pertinent will be returned to Mr. Cohen.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

Why should a lawyer not be subject to searches and warrants?

From what I hear they work with a clean team and a dirty team, the dirty team searches through the files and those files that are subject of the warrant get handed over to the "clean team" so that they are insulated from the other information the dirty team goes through.

That process might involve a judge reviewing the materials to separate out what is privileged (or what might fall within an exception to the privilege), or else set up a "dirty team" that does the review but is insulated from the "clean team" running the investigation. Another option is a "special master," an experienced and qualified third-party attorney to do the review. Sometimes the reviewing team will only be identifying and protecting privileged material. Sometimes the reviewing team will be preparing to seek, or to implement, a court ruling that the documents are not privileged.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

He's being investigated for possible bank/tax fraud for his involvement in taxis.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

And if those FBI agents happen across a bit of juicy detail that could potentially be "tied" to some other "evidence" then all the better for Mueller. Right?
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

And if those FBI agents happen across a bit of juicy detail that could potentially be "tied" to some other "evidence" then all the better for Mueller. Right?

Wrong. The FBI "clean team", Rod Rosenstein, and a judge will review everything confiscated and determine what will be retained for any SDNY prosecution of Cohen.

Whatever is retained must be pertinent to the SDNY affidavit. The remainder falls under attorney-client privilege and must be returned to Cohen.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

Wrong. The FBI "clean team", Rod Rosenstein, and a judge will review everything confiscated and determine what will be retained for any SDNY prosecution of Cohen.

Whatever is retained must be pertinent to the SDNY affidavit. The remainder falls under attorney-client privilege and must be returned to Cohen.

You mean like how investigative information isn't supposed to be "leaked" to the press by anonymous sources? That kind of thing? Sorry Rogue, I just don't trust the FBI or government officials to not play dirty at every possible opportunity.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

You mean like how investigative information isn't supposed to be "leaked" to the press by anonymous sources? That kind of thing? Sorry Rogue, I just don't trust the FBI or government officials to not play dirty at every possible opportunity.

Well Kal, you have every right to your opinion.

Perhaps you're right, but unless and until I see solid evidence of the DoJ screwing this up, I'll assume they are going the extra nine yards to make their case here legally impeccable and above board.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

10) A team of FBI agents with no relation to either the Mueller investigation or the SDNY investigation will cull the confiscated materials and
separate what is pertinent to the affidavit from what is not. What is not pertinent will be returned to Mr. Cohen.

Per #10, I also believe a Federal judge will supervise what materials are pertinent to the SDNY affidavit and what must be returned to Mr. Cohen.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

The "rule of law" is mostly a romantic illusion. It is very flexible, and it's up to the government as to when it applies or not.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

I just hope there is more to this than purchasing women’s cooperation!
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

Wrong. The FBI "clean team", Rod Rosenstein, and a judge will review everything confiscated and determine what will be retained for any SDNY prosecution of Cohen.

Whatever is retained must be pertinent to the SDNY affidavit. The remainder falls under attorney-client privilege and must be returned to Cohen.
I do not believe that is correct.

It's the "dirty" or "taint team" that reviews all the documents. Their job is to rule out anything covered by attorney-client privilege.

Any other documents they find which suggest that Cohen participated in illegal activity is fair game. It doesn't have to be pertinent to the initial scope of the investigation, the documents just have to be within the scope of what the warrant says.

E.g. if it says "all documents pertaining to Cohen's business stored at his office or home," then they can't access an off-site storage unit without an additional warrant.

It's possible the warrant might say "documents after January 1 2015" but... it might not. If it does, then anything they find within that time frame which indicates fraud or some other crime can be used against Cohen or one of his clients to build a case based on other charges.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

I do not believe that is correct.

It's the "dirty" or "taint team" that reviews all the documents. Their job is to rule out anything covered by attorney-client privilege.

Any other documents they find which suggest that Cohen participated in illegal activity is fair game. It doesn't have to be pertinent to the initial scope of the investigation, the documents just have to be within the scope of what the warrant says.

E.g. if it says "all documents pertaining to Cohen's business stored at his office or home," then they can't access an off-site storage unit without an additional warrant.

It's possible the warrant might say "documents after January 1 2015" but... it might not. If it does, then anything they find within that time frame which indicates fraud or some other crime can be used against Cohen or one of his clients to build a case based on other charges.

Cohen's home, apartment, and office were raided. Whatever documents are retained per the affidavit must first be cleared with a supervisory judge. Everything else gets returned to Cohen.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

stormy-daniels-michael-cohen-trump.jpg

Trump lawyer Michael Cohen ... the Middleman



So far, the Cohen action has not crossed any legal red lines.

1) The investigative team of Special Counsel Robert Mueller came across potentially criminal activity of Trump attorney Michael Cohen.
2) Mueller presented all relevant information to his supervisor, US Deputy Attorney General Rod Rosenstein.
3) After reviewing all material(s), Rosenstein assigned the case to the US District Attorney for Southern New York.
4) The SDNY DA reviewed the material(s) and agreed that there existed probable cause for further action.
5) SDNY prosecutors drew up an affidavit and requests for search warrants on numerous locations.
6) SDNY prosecutors presented their documents to a Federal judge.
7) The judge agreed that probable cause existed and signed the search warrants.
8) Furthermore, the judge agreed that there existed a very real possibility that Cohen may attempt to hide or destroy evidence.
9) The FBI raided numerous locations without warning, confiscating Cohen computers, thumb drives, e-mails, fax's, phones, paper documents, and tax documents.
10) A team of FBI agents with no relation to either the Mueller investigation or the SDNY investigation will cull the confiscated materials and
separate what is pertinent to the affidavit from what is not. What is not pertinent will be returned to Mr. Cohen.

Point three is categorically false because the SDNY DA was asked to recuse himself because he was personally interviewed or because he worked with Giuliani, because, well who didn't work with him in NY at some point? He was the mayor and a prosecutor for years. The process stinks from top to bottom.

ABC: Trump-appointed US attorney was recused from Cohen probe | TheHill
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

Cohen's home, apartment, and office were raided. Whatever documents are retained per the affidavit must first be cleared with a supervisory judge. Everything else gets returned to Cohen.
The judge doesn't review the documents; the "taint team" does. And again, the only job of the "taint team" is to identify which documents are subject to attorney-client privilege. Anything else that is within the scope of the warrant (not the investigation) goes to the prosecutors for review.

E.g. if they find an email where Cohen was communicating with Russian contacts about campaign strategies, SDNY can forward that to Mueller, and it can be used in court. It doesn't matter if the SDNY investigation is focusing on bank fraud and campaign violations, all that matters is whether the communication is privileged.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

Point three is categorically false because the SDNY DA was asked to recuse himself because he was personally interviewed or because he worked with Giuliani, because, well who didn't work with him in NY at some point? He was the mayor and a prosecutor for years. The process stinks from top to bottom.
So it stinks because... Law enforcement is doing the right thing?

Mueller handed it off, as he should have, since the issues were not in the scope of his investigation.

It's unlikely Berman recused himself because of Giuliani. Not every prosecutor on the eastern seaboard worked with him, by the way -- he left the SDNY in the 80s, when he started running for Mayor. The more likely reason for the recusal is that Berman donated to Trump. And if you want to know the part that stinks, it's that Trump personally interviewed Berman, and that's a step that Presidents never take.

Getting a warrant to search an attorney, let alone the President's attorney, requires a very high bar. Meaning they needed LOTS of solid evidence in order for any judge to even consider getting a warrant.

By the way, SDNY has a reputation for not being political. Keep in mind that's the office that went after Elliot Spitzer and Anthony Weiner.

What stinks is Cohen, not the rest of the process.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

So it stinks because... Law enforcement is doing the right thing?

Mueller handed it off, as he should have, since the issues were not in the scope of his investigation.

It's unlikely Berman recused himself because of Giuliani. Not every prosecutor on the eastern seaboard worked with him, by the way -- he left the SDNY in the 80s, when he started running for Mayor. The more likely reason for the recusal is that Berman donated to Trump. And if you want to know the part that stinks, it's that Trump personally interviewed Berman, and that's a step that Presidents never take.

Getting a warrant to search an attorney, let alone the President's attorney, requires a very high bar. Meaning they needed LOTS of solid evidence in order for any judge to even consider getting a warrant.

By the way, SDNY has a reputation for not being political. Keep in mind that's the office that went after Elliot Spitzer and Anthony Weiner.

What stinks is Cohen, not the rest of the process.

So what you are saying is Berman was recused because of political reasons but the office isn't political. Logically makes no sense.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

So what you are saying is Berman was recused because of political reasons but the office isn't political. Logically makes no sense.
Berman chose to recuse himself.

Yes, SDNY is not political. Berman was appointed by Trump, meaning he's a recent addition.

Again, Trump interviewed Berman, which is highly unusual -- previous Presidents never interviewed US attorneys prior to hiring. And of course, Trump didn't interview any other US attorneys prior to appointment. HMMMMMM

Trump was probably hoping Berman would be more loyal to Trump personally than to the law, his duties and/or the Constitution. That was Trump trying to politicize an office that is, again, well-known for its neutrality.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

Berman chose to recuse himself.

Yes, SDNY is not political. Berman was appointed by Trump, meaning he's a recent addition.

Again, Trump interviewed Berman, which is highly unusual -- previous Presidents never interviewed US attorneys prior to hiring. And of course, Trump didn't interview any other US attorneys prior to appointment. HMMMMMM

Trump was probably hoping Berman would be more loyal to Trump personally than to the law, his duties and/or the Constitution. That was Trump trying to politicize an office that is, again, well-known for its neutrality.

"Choice" is a funny thing. People "chose" to quit. I am not at all sure that Berman's "choice" was entirely up to him.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

"Choice" is a funny thing. People "chose" to quit. I am not at all sure that Berman's "choice" was entirely up to him.
Your completely unsubstantiated suspicions are noted... and rejected. You have no basis to make this claim, and it defies all logic.

• I'm pretty sure that the only people who can fire a US Attorney are the President and the AG. I'm not even sure if the Deputy AG can fire Berman.

• Berman put himself squarely in Trump's crosshairs when he recused himself. If keeping his job was more important than actually doing his job, he would have rejected the request for his office to handle the issue.

• Firing a US Attorney is a pretty big deal -- as seen when Trump fired Berman's predecessor (Preet Bharata).

I.e. the only people with real leverage over Berman would want him to bury this case, not bow out and hand it over to a bunch of attorneys in SDNY.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

Your completely unsubstantiated suspicions are noted... and rejected. You have no basis to make this claim, and it defies all logic.

• I'm pretty sure that the only people who can fire a US Attorney are the President and the AG. I'm not even sure if the Deputy AG can fire Berman.

• Berman put himself squarely in Trump's crosshairs when he recused himself. If keeping his job was more important than actually doing his job, he would have rejected the request for his office to handle the issue.

• Firing a US Attorney is a pretty big deal -- as seen when Trump fired Berman's predecessor (Preet Bharata).

I.e. the only people with real leverage over Berman would want him to bury this case, not bow out and hand it over to a bunch of attorneys in SDNY.

Or people within the DOJ that could make his career options limited. I still haven't seen any solid information on why the recusal occurred.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

Or people within the DOJ that could make his career options limited. I still haven't seen any solid information on why the recusal occurred.
Yeah, those "people in the DoJ?" That's Trump.

Berman is still an interim US attorney, and his term is up at the end of the month. It is Trump who has to decide whether to make him permanent, a decision that requires confirmation in the Senate. And again, Berman donated to the campaign, and personally interviewed with the President.

Recusing himself will not make the Senate confirmation any easier; plus, he has very likely damaged his standing with Trump, who is already fuming about firing "everyone" (Sessions, Rosenstein, Mueller, Berman).

And no, there will not be an official PR statement on why Berman bowed out. Maybe it will be discussed if he has a Senate confirmation hearing, maybe not.

At any rate, there is no basis to bash the process. Mueller handed over the case to Rosenstein, who sent it to SDNY. It was going to be investigated, with or without Berman. DOJ/FBI/LEOs almost never go after attorneys, because of attorney-client privilege and because most attorneys are incredibly careful; meaning that the DOJ must have had very solid evidence before even thinking about taking it to a magistrate judge. There are now two layers between Cohen and Mueller -- the first is the SDNY handling the case, the second is that SDNY has to set up a "taint team" to make sure no evidence shielded by attorney-client privilege.

I.e. this is a clean hit, and it's happening because Cohen almost certainly did something illegal. It is Cohen that stinks, not the law enforcement agencies investigating him.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

Yeah, those "people in the DoJ?" That's Trump.

Berman is still an interim US attorney, and his term is up at the end of the month. It is Trump who has to decide whether to make him permanent, a decision that requires confirmation in the Senate. And again, Berman donated to the campaign, and personally interviewed with the President.

Recusing himself will not make the Senate confirmation any easier; plus, he has very likely damaged his standing with Trump, who is already fuming about firing "everyone" (Sessions, Rosenstein, Mueller, Berman).

And no, there will not be an official PR statement on why Berman bowed out. Maybe it will be discussed if he has a Senate confirmation hearing, maybe not.

At any rate, there is no basis to bash the process. Mueller handed over the case to Rosenstein, who sent it to SDNY. It was going to be investigated, with or without Berman. DOJ/FBI/LEOs almost never go after attorneys, because of attorney-client privilege and because most attorneys are incredibly careful; meaning that the DOJ must have had very solid evidence before even thinking about taking it to a magistrate judge. There are now two layers between Cohen and Mueller -- the first is the SDNY handling the case, the second is that SDNY has to set up a "taint team" to make sure no evidence shielded by attorney-client privilege.

I.e. this is a clean hit, and it's happening because Cohen almost certainly did something illegal. It is Cohen that stinks, not the law enforcement agencies investigating him.

If you don't think Mueller and Rosenstein can do the same, you would be mistaken. They definitely have political strings they can pull at DOJ. Your position is pretty naïve of what DC frequently does.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

If you don't think Mueller and Rosenstein can do the same, you would be mistaken. They definitely have political strings they can pull at DOJ. Your position is pretty naïve of what DC frequently does.
Riiiiight

The idea that either Mueller or Rosenstein have any pull in Berman's career is laughable.

The most important person for Berman's career right now is Trump. The only way that Berman can become a permanent US Attorney is with Trump's approval. The only way to really have any pull over Berman is to have pull with Trump.

Neither Mueller nor Rosenstein have any sway over Trump, or Berman's career. And this investigation was going to happen with or without Berman recusing himself.

I mean, really. How do you think this went down? Did Mueller and Rosenstein travel to NYC (without anyone noticing of course), and threaten to wreck Berman's career if he didn't recuse himself? Even though they can't hire or fire him? Did they make him an offer he couldn't refuse? Dump the severed head of a horse on his bed one night?

All I'm hearing from you is a partisan reaction, where it is somehow inconceivable that Cohen could do wrong -- talk about naive! Let's look at his recent record...

• He owes $54,000 in back taxes connected to his taxi business
• He borrowed $130,000 from a HELOC to pay off a porn star who already publicly admitted she'd had an affair with Trump
• He and Trump claims Trump had no idea about this payment -- which if true, that can get Cohen disbarred
• He is insisting that an NDA which Trump never signed has the full force of the law

And that's just in the past few months. The guy is dirty enough for a judge to agree to a search of his office and home, which yet again! means they have tons of solid evidence. I apologize for forgetting the attribution, but... Attorneys rarely get searched; and when that happens, they almost always get convicted.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

Riiiiight

The idea that either Mueller or Rosenstein have any pull in Berman's career is laughable.

The most important person for Berman's career right now is Trump. The only way that Berman can become a permanent US Attorney is with Trump's approval. The only way to really have any pull over Berman is to have pull with Trump.

Neither Mueller nor Rosenstein have any sway over Trump, or Berman's career. And this investigation was going to happen with or without Berman recusing himself.

I mean, really. How do you think this went down? Did Mueller and Rosenstein travel to NYC (without anyone noticing of course), and threaten to wreck Berman's career if he didn't recuse himself? Even though they can't hire or fire him? Did they make him an offer he couldn't refuse? Dump the severed head of a horse on his bed one night?

All I'm hearing from you is a partisan reaction, where it is somehow inconceivable that Cohen could do wrong -- talk about naive! Let's look at his recent record...

• He owes $54,000 in back taxes connected to his taxi business
• He borrowed $130,000 from a HELOC to pay off a porn star who already publicly admitted she'd had an affair with Trump
• He and Trump claims Trump had no idea about this payment -- which if true, that can get Cohen disbarred
• He is insisting that an NDA which Trump never signed has the full force of the law

And that's just in the past few months. The guy is dirty enough for a judge to agree to a search of his office and home, which yet again! means they have tons of solid evidence. I apologize for forgetting the attribution, but... Attorneys rarely get searched; and when that happens, they almost always get convicted.

You really think the 2nd in command at the FBI and a former FBI director have no pull in DC? That's incredibly naïve. What I think is that pressure was put on Berman to step aside. That's not much of a stretch by any means.
 
Re: What about attorney-client privilege? How the FBI can obtain a warrant for Cohen's office

And if those FBI agents happen across a bit of juicy detail that could potentially be "tied" to some other "evidence" then all the better for Mueller. Right?

Wrong. As progressive Attorney Ron Kuby expressed this morning, "should the Special Prosecutor use any information obtained from the Cohen investigation against Trump, Mueller should immediately face a disbarment proceding."

As well, Mueller is now facing an explanation of how conveyance of Taxi medallions is a jurisdictional Federal Securities Fraud matter.

Fruit from a poisoned tree is also poisoned.
 
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