No, Mr. President, the Attorney Client Privilege Is Not Dead – Plus, How We Got Here

Before we get to the Michael Cohen raid itself, let’s lay a little foundation (legal word alert!) as to how we got here and then we’ll talk about why the attorney-client privilege does not apply in this instance. Robert Mueller is the Special Counsel with the following mandate:

So if you were wondering how Stormy Daniels, a porn star, could be the one to take down a President of the United States, re-read that mandate and focus on Section (b)(ii): “any matters that arose or may arise directly from the investigation”. So what likely happened here is that Mueller was looking into Michael Cohen, President Trump’s personal attorney, on numerous Russia-related matters, given Cohen’s position in Trump’s inner circle. Mueller then stumbled upon what is likely a crime committed by Cohen himself, but a crime unrelated to Mueller’s Russia-related task at hand.

To guide us, here are some questions and answers we deemed pertinent regarding the Michael Cohen FBI raid.

What Crime(s) Might Michael Cohen Have Committed That Led to the Raid?

1. Money Laundering;
2. Conspiracy to Commit Bank Fraud; and
3. Conspiracy to Commit Various Campaign Finance Violations.

Let’s start with the easy one: Money laundering. Michael Cohen has well-known ties to various Russian oligarchs and Ukrainian businessmen. What Cohen is alleged to have done is to have arranged for them to get their money into the United States by hiding the source of the funds. Let’s turn to Breaking Bad for an explanation of money laundering, shall we?

The conspiracy to commit bank fraud and to violate campaign finance violations stem from the hush money fund. You know, the one that Michael Cohen alleges doesn’t exist. Because of course Cohen paid Stormy Daniels $130,000 out of his own funds to shut her up with regard to her saucy allegations about then candidate Trump.

The reason the hush money may be a crime is that Cohen, possibly at the behest of Trump (of course it was at the behest of Trump) set up business entities through which to funnel the money to the people like Stormy Daniels. And where did that funnel emanate from? You didn’t think Trump would pay out of his own pockets did you? Of course not! He allegedly used campaign finance funds to pay off women he had affairs with, sexually harassed, and/or sexually abused. That’s not allowable under campaign finance laws. Lying to the banks isn’t allowed either. Shocking, right?

Now, it wasn’t Mueller’s team that raided Cohen’s office. It was the FBI. Because he felt that the hush money crimes fall outside the scope of his mandate, Mueller didn’t pursue them. Instead, he referred the case to the federal prosecutor in the Southern District of New York, Geoffrey Berman, a Trump appointee. Not only that, but acting Attorney General for all things Russia, Rod Rosenstein, signed off on the FBI raid.

Long story short, Michael Cohen could be in some serious trouble. Why does this matter? Because Cohen is the point person for Trump on all things Russia. “Ask Michael Cohen” is about the only thing Trump remembers to say nowadays.

Can Michael Cohen Flip On Trump?

You betcha.

How? What About Attorney-Client Privilege?

It is impeccably hard to pierce the attorney-client privilege. But when you’re a crook like Trump, or a lawyer who handles crooks like Trump, it gets a bit easier.

The attorney-client privilege is a legal doctrine that serves to keep communications between an attorney and his or her client private. The privilege belongs to the client and thus can only be waived by the client. However there are exceptions. One of those exceptions is what we’re sure you’ve heard about by now unless you watch Fox News is the crime-fraud exception. It comes to us from Clark v. United States in which Justice Benjamin Cardozo wrote that “[a] client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.”

In other words, if you use your attorney to facilitate your criminal endeavors, the attorney-client privilege no longer applies. President Trump’s tweet should have read: “Attorney-client privilege is dead . . . if and when you use your attorney to help you commit crimes.”

The prosecuting offices have a lot of hurdles to go through before they can justify raiding an attorney’s office. Most importantly, a federal judge has to sign off on it. That signature is harder to get than one from Tiger Woods (don’t tell us you’re surprised to hear that Tiger doesn’t like signing autographs for fans). To even get in that judge’s office, you need an independent team to verify that the material you wish to seize is not privileged. Basically, it has to be pretty clear that a lawyer is a crook or helping a crook before prosecutors can raid his office. Conclusion: Michael Cohen either is a crook himself or he helps crooks to commit their crimes. The odds of the FBI raiding his office without substantial evidentiary support are slim to none with slim having just left the building.

So, Will This Be Donald Trump’s Undoing?

Possibly. Remember, we’ve asked that question with every Trump scandal since Devin Nunes was running around on the White House lawn at midnight about a year ago.

If anyone knows where the bodies are buried, it’s Michael Cohen. Mr. Cohen is known to have been doing Trump’s bidding for over a decade now. He’s the leaner, the bully, the fixer. Michael Cohen is basically Ray Donovan with a law degree but without any redeeming qualities. And if Michael Cohen decides to save his own skin, he’ll be afforded that opportunity in exchange for telling authorities about any and all crimes that clients, most notably Trump, have asked for his help in committing.

It’s kind of poetic justice when you think about it. Hillary Clinton was undone by an email scandal that started with Anthony Weiner’s . . . well . . . you know. That led to the search of Weiner’s wife, Huma Abedin. Ms. Abedin’s computer started the Hillary’s Emails! non-scandal. So if Trump is undone because he used his lawyer to launder money and pay off a porn star, after he called Hillary Clinton the crooked one? Let’s just say that it couldn’t happen to a nicer guy.