At a hearing in Manhattan federal court Monday afternoon, a judge denied a request by President Trump and his lawyer, Michael Cohen, to prevent investigators from reviewing materials seized from Cohen’s office and residences.
Cohen, who describes himself as the president’s “fixer,” has not been charged with any crimes at this point. Clearly, though, he is the focus of a serious criminal investigation by the FBI and federal prosecutors in the Southern District of New York (SDNY). Yesterday’s hearing before District Judge Kimba Wood addressed the question of whether last week’s raids violated the attorney–client (A-C) privilege of President Trump and Cohen’s other clients — though there turn out to be precious few of those.
Consequently, even before the raids, the court authorized the FBI and prosecutors to search various email accounts maintained by Cohen. While the government reports that “zero emails were exchanged [by Cohen] with President Trump,” the existence of this monitoring means prosecutors long ago had to implement procedures to safeguard the A-C privilege.
The raids, then, are almost beside the point. The investigation is apparently far along, a grand jury is considering evidence, and the revelation that the probe is largely unrelated to Cohen’s law practice makes sense since he doesn’t appear to have much of one.
1. Scope of the Cohen Investigation
In this weekend’s column, I posited that the SDNY would probably not go through the legal complications attendant to searching a lawyer’s premises unless crimes more serious than a potential campaign-finance violation were involved. The government was obviously exploring such questions as whether felony fraud or extortion had been committed in inducing two women to remain mum about sexual liaisons they claim to have had, a decade ago, with Donald Trump. Still, we do not know the full range of the Cohen investigation.
It is probably safe to assume that the SDNY investigation has no relation to supposed Trump-campaign collusion with Russia. If it did, Special Counsel Robert Mueller would have tried to fold it into his ongoing probe rather than referring it to the SDNY. But beyond that deduction, all we can say is that the probe involves more than Cohen’s legal representation of clients, which appears to be more of a sideline than a steady occupation.
It is thus worth reiterating: The A-C privilege covers only communications between a lawyer and clients that truly are in the nature of legal advice (along with any work product directly related to such legal representation). If a lawyer commits crimes and keeps physical or documentary evidence of those crimes in his office, those materials are not privileged. If a lawyer is involved in a criminal scheme with a client, their communications in that connection are not privileged — they are conspiratorial utterances, and they can be investigated like any other conspiratorial utterances. Having the status of “lawyer” does not insulate a person from investigation and prosecution.
2. President Trump and the ‘Conspiracy of Silence’
The government’s investigative interest in Cohen is broader in scope than Cohen’s dealings with Trump. Thus, the fact that Cohen is a suspect would not necessarily make the president a suspect, except with respect to Cohen’s activities that have some factual connection to Trump. The latter would include the genesis of non-disclosure agreements (NDAs) about alleged Trump sexcapades, including one NDA (involving porn star Stephanie Clifford, a.k.a. Stormy Daniels) that both Cohen and Trump dubiously claim Trump was unaware of.
Here, though, we must bear in mind that NDAs are not illegal per se. To the contrary, they are commonplace in civil settlements. Which brings us to the latest in the anti-Trump media lexicon: They’ve come up with a new “collusion” — i.e., a new narrative that slyly implies criminality where there may be none: the “conspiracy of silence.” This is becoming the weasel-word framework for coverage of the Cohen–Trump collaboration.
Just as we had to beat back the intimation that “collusion” is a crime (it’s not), we must now point out that silence is not one, either. There’s a subtle difference between the two deceptive narratives: Mere “collusion” is not a crime because it does not rise to the level of conspiracy, which requires that the objective of the collaboration be an actual crime; “conspiracy of silence” is a nonsense term because silence is not a criminal objective, so colluding to achieve silence does not amount to a real conspiracy.
If there isn’t much law being practiced, then there can’t be many privileged A-C communications to worry about.
The similarities do not end there. “Collusion” could but does not necessarily involve a criminal conspiracy. If you collude with
someone to collect political opposition research, that may be unsavory, but it is not a conspiracy. If you collude with someone to hack email accounts, that’s a conspiracy. Analogously, an arms-length agreement to suppress potentially embarrassing information may be unsavory, but it is not a criminal scheme. Yet if an ostensibly legal NDA is induced by fraud or extortion, or if its effect is to suppress information that is legally required to be disclosed, it can become a criminal scheme.
In such instances, the conspiracy is not silence. It is the cause or effect of the silence. Unless prosecutors can prove beyond a reasonable doubt that the NDAs resulted from fraud or extortion, or that they resulted in the frustration of a reporting requirement, there is no crime. And, as we’ve pointed out regarding campaign-finance reporting requirements, violations are generally not treated as crimes even though they technically can be.
3. The Attorney-Client Privilege Issue Predates the Raids
Because the FBI and prosecutors have been monitoring Cohen’s emails for months, the A-C privilege has already been a live issue for a long time. At first blush, this suggests that the A-C issue is broader and more complex than the narrow question of whether the raids were legitimate. But in reality, the A-C issue is probably overblown and simple because Cohen does not have a thriving law practice.
Essentially, he claims to have only three clients (although there are, he says, seven others to whom he provided general “strategic advice and business consulting” since 2017). The most important of the three is President Trump, but it is unlikely that Cohen has done much work for him in the last 16 months. The second is Elliott Broidy, the Trump-tied heavyweight Republican donor for whom Cohen negotiated an NDA in connection with Broidy’s extramarital fling with a former Playboy model. That A-C relationship seems like a very limited and closed engagement. Finally, the third alleged client is Sean Hannity, who denies that there was any formal A-C relationship — and whose outing as a purported client was outrageous, a point I will get to shortly.
If there isn’t much law being practiced, then there can’t be many privileged A-C communications to worry about.
In a column last week, I explained the extensive procedures prosecutors use, under court supervision, to safeguard the confidentiality of A-C communications. This involves introducing what is known as a “clean team” or a “taint team” of investigators. The clean team screens the seized materials to filter out any privileged communications (and work product derived therefrom) before they can be shown to the prosecutors and FBI agents who are working on the investigation. The screening process involves making the seized materials available to the lawyer and his clients so that they can identify any items they claim are privileged; disputes over these claims are resolved by a judge (or by a “special master” appointed by the judge for this purpose).
The obvious objection to this process is that government investigators still get to see the communications and work product claimed to be privileged, even though those investigators (a) are not the prosecutors and FBI agents working on the underlying investigation and (b) may not use the privileged information for any purpose. This is not a perfect solution, because the information is supposed to be completely confidential, and as a practical matter an investigator cannot “un-learn” anything he has perused. But of course, legal privileges are rarely absolute. There are competing interests involving enforcement of the law. If the A-C privilege were absolute, any criminal could shield himself from investigation by simply incorporating a lawyer into his activities.
The central issue in Monday’s hearing was whether there was some procedure better than the one the government wants to follow. Judge Wood denied a proposal by Cohen and Joanna Hendon, a private lawyer for the president, that the seized materials be surrendered to Cohen so that he and Trump’s counsel could go through them and sort out claimed A-C-privileged materials before the government’s taint team got a peek.
Thus, the usual procedure for this unusual situation will be observed — the taint team will work with Cohen and Trump’s lawyers to identify privileged documents along with any other lawyer work that is not pertinent to the criminal investigation. Judge Wood will probably appoint a special master to facilitate this process. The team of prosecutors and FBI agents working on the Cohen probe will get access to relevant, non-privileged items only after this process runs its course.
It seems to me, though, that this ship has already sailed. The government was already poring over Cohen’s emails before the raids. Therefore, the likelihood is that (a) there was already a procedure in place to protect the A-C privilege, (b) prosecutors have amassed a strong showing that Cohen is not very actively engaged in the practice of law, and (c) the emails and other evidence investigators had gathered were used as part of the probable-cause showing to justify the search warrants that were executed last week.
As the probe proceeds, attention will turn to whatever safeguards have been in place over the last few months to guard against breach of potential A-C communications in Cohen’s emails. Plainly relevant to that question is: For what precisely is Cohen under investigation? If it is his own activities that have little relation to the practice of law, A-C communications will be of little concern. Similarly important: Were Cohen’s actions on behalf of purported clients truly in the nature of legal representation — as opposed to actions that have nothing to do with legal representation?
4. Outing Sean Hannity
The worst aspect of yesterday’s hearing was the revelation that Cohen claims Sean Hannity as one of his clients. I say this as a proud SDNY alum who has assured people that the Cohen investigation is surely not political, and as a longtime admirer of Kimba Wood, who is a very solid federal judge.
Full disclosure: I have had friendly relations with Sean for many years. I haven’t been on his shows in many moons and the direction in which he’s taken them during the Trump era is not my cup of tea. But he has been nothing but kind to me personally, and I appreciate that.
The A-C privilege exists because we want to encourage people to seek legal advice in resolving disputes, even though discussing one’s problems can entail risk — lost opportunity, embarrassment, incrimination, etc. And while people may assume the worst (or, in the media’s case, report the worst assumptions) when they learn someone has sought legal counsel, it is most often done for mundane, wholly legitimate reasons — a real-estate transaction, drafting a will, setting up a trust account, structuring a business, complying with complex regulatory regimes, and so on.
While A-C communications are privileged, the same cannot be said either for the fact that an A-C relationship exists or for any attendant fee arrangement. Nevertheless, these matters are sensitive.
When, for whatever reason, these matters become relevant to a criminal investigation, the common practice is for prosecutors to issue a grand-jury subpoena, directing the lawyer to identify clients or fee arrangements. Grand-jury proceedings are secret. In this manner, the government can proceed with its investigation but the lawyer’s clients are not publicly embarrassed or slimed with innuendo. Moreover, the client can be given notice and an opportunity to be heard by the court, in order to make any argument he may have against being identified, particularly to the public.
Ultimately, if the target of the investigation is prosecuted and a third-party’s A-C relationship has some bearing on the case, that relationship could eventually become public (in the indictment, the pretrial motions, the trial, or the plea proceedings). But unless and until that happens, a third party’s A-C relationship — which may have utterly no bearing on the matters under criminal investigation — is nobody’s business and should remain confidential.
Because Cohen is making a legal claim that the government should not be able to use evidence it has seized, it is his burden to establish that there were A-C relationships and that seized items traceable to those relationships are privileged. Plainly, then, Cohen needs to show that he has clients. Nevertheless, there was no reason at this stage for the identities of those clients to be revealed publicly.
I’m confident that the media would be reporting with umbrage rather than glee if a liberal commentator were needlessly outed as the client of a lawyer under criminal investigation.
Moreover, the A-C privilege belongs to the client, not the attorney. The law is supposed to protect the client, not indulge the lawyer. While the press has made this seem nefarious, lawyers — and especially lawyers who’ve gotten crosswise with the law — never want to reveal the identities of their clients. It was no big deal to disclose the names of Trump and Broidy; they have publicly acknowledged A-C relationships with Cohen (and indeed, Trump was joining Cohen in his motion before the court). It was wrong, however, to reveal Hannity’s name. There were easy ways to give the government the information needed to help identify potentially privileged materials absent publicly disclosing Cohen’s client roster. Judge Wood could have directed that Hannity’s name be given to prosecutors but permitted Hannity an opportunity to argue that his name be kept out of the public record during the grand-jury investigation.
That being the case, it is difficult to see what happened in court as anything other than a gratuitous shot at Hannity, which Trump partisans will naturally take as a sign that the investigation is political. The unnecessary disclosure put Hannity in the position of having to explain himself publicly, to assure people that he is not involved in embarrassing or criminal episodes for which he needed to retain a “fixer.” (In fact, he explains that he and Cohen may have had informal legal discussions but never a formal A-C relationship.)
I am not weighing in here on journalistic ethics. I don’t know whether Hannity’s relationship with Cohen, whatever its nature, obliged him to disclose the relationship to his audience before launching his highly partisan coverage of the raid on Cohen’s premises. It seems to me that Sean makes no bones about being a Trump advocate rather than an objective journalist, so I don’t know what his duties are — though I doubt anyone would be surprised to learn he has close relationships with people in Trump’s orbit.
Regardless of whether he should have outed himself, it was inappropriate for the court to order him outed as a Cohen client. I think the SDNY and Judge Wood will come to regret that things were done this way (certainly, the SDNY wants to continue arguing for confidentiality when it suits the government’s investigative interests). And I’m confident that the media would be reporting with umbrage rather than glee if a liberal commentator were needlessly outed as the client of a lawyer under criminal investigation.