“Attorney Client privilege is now a thing of the past,” President Trump tweeted Sunday morning. It was a declaration that came just five days after his earlier claim that the privilege was “dead.” He was responding to a raid by FBI agents on the office and hotel room of his longtime attorney, Michael Cohen. Though his Sunday tweet went on to warn that “lawyers are deflated and concerned,” it was likely the president himself who was feeling the heat — as other attorneys for the president made clear Sunday night, when they asked a court to let Trump review whatever documents the FBI seized from Cohen before federal prosecutors can see them.
With his outrage over Cohen’s legal troubles, Trump has exposed the secret refuge of white-collar defendants: the lawyer’s office.
Privileged communications are a special set of correspondences or discussions that are shielded by American jurisprudence from forced discovery. In principle, this is a good thing: There is a public interest in maintaining the secrecy of certain communications between these parties. So, when the criteria establishing a privilege are met, these communications are legally outside the reach of any judge or prosecutor.
Although the attorney-client privilege is an important element of the legal system, in criminal investigations it’s also one that disproportionately benefits those who can afford to keep attorneys around all the time. Not only is the attorney-client privilege alive, it is often weaponized by wealthy bad actors, giving them a free pass to engage in corrupt conduct. They’re effectively able to use their communications with their legal representatives to cloak their activities and buffer them against future legal inspection.
Under ordinary circumstances, federal agents and prosecutors can obligate witnesses to provide them information. They can subpoena emails, letters, voice mails and text messages from anyone a criminal target has spoken to. They can make corporations disclose internal records, video recordings and even proprietary software. They can haul a potential defendant’s associates before the grand jury and force them to describe their interactions with a target. Prosecutors can interrogate witnesses about the most sensitive information: personal betrayals, long-held secrets, even sexual activity.
But if a defendant has buried this information in a communication with an attorney, it is often inaccessible. Only the savviest defendants are smart enough to prepare for this eventuality. And only the wealthiest defendants have the financial resources to pull the trick off.
Attorney-client privilege has limits: It only applies to communications made in confidence between an attorney and client in which legal advice is sought or provided. If any one of these elements is missing, the privilege vanishes. Attorneys — and recently, the New York Times — often get this wrong, asserting that the mere “confidential” nature of a communication between an attorney and client privileges the communication. This is not the case. The primary purpose of the communication must be to obtain or provide legal advice. So, as Sean Hannity discovered Monday, even if a client’s identity is intended to be “confidential,” it is only protected by the attorney-client privilege in the rare circumstances under which revealing the identity is tantamount to revealing the legal advice sought.
At least some of the items authorities sought from Cohen appear to fall outside of the protection of the attorney-client relationship. Agents reportedly searched for evidence pertaining to the hush money Cohen paid to Stephanie “Stormy Daniels” Clifford. Cohen said he acted on his own in paying Clifford. Trump agreed, saying he didn’t know about the payment. In this case, Cohen was not acting as Trump’s attorney in the transaction, and there is no attorney-client relationship since, according to the president, there are no communications in which he sought legal advice. Trump has essentially waived the attorney-client protection on this issue. Moreover, if any of the materials obtained were used in furtherance of a crime, they are subject to a crime-fraud exception to the attorney-client privilege.
His conviction that it was still in play, however, is probably a consequence of the way he and other affluent figures have long used attorney-client privilege as a preemptive shield. Whether they realize prosecutors have ways to navigate the attorney-client privilege, they know that getting around it is never easy. Making a mistake can taint the whole investigation resulting in a dismissal of the case, while properly navigating a review of attorney communications requires complex and time-intensive review processes. Judges, for their part, aggressively scrutinize any attempt to invade the attorney-client privilege. While it is, legally speaking, the privilege-holder’s burden to prove that the protection exits, in practice, the judiciary often presumes that communications are privileged and obligates prosecutors to prove otherwise.
This presumption of privilege can give cover to criminal actors. Well-heeled criminals often include attorneys in their illicit communications to shield their activity from discovery. Conversely, people who are familiar with the privilege often assume it’s stronger than it really is: Former White House aide Hope Hicks reportedly alarmed Mark Corallo, former spokesman for Trump’s legal team, when she made a potentially compromising statement without a lawyer present and thus — in Corallo’s view — unprotected by the attorney-client privilege. The mere presence of a lawyer would not, in practice, have made the conversation legally privileged. Nevertheless, Corallo’s assumption that it could have shielded the comment from discovery speaks to the way Trump and his ilk have attempted to take advantage of attorney-client privilege.
This line of thinking came to a head in a hearing that concluded Monday, during which lawyers for Cohen and Trump attempted to hold off prosecutorial review of seized materials. At one point in the proceedings, Trump attorney Joanna Hendon claimed that the “appearance of fairness” was at stake. Echoing her client’s tweets, she also warned that the privilege itself was in danger. Given how frequently attorney-client privilege benefits the wealthy, her concern about “fairness” may be misplaced.
U.S. District Judge Kimba Wood didn’t fall for the usual traps and rightly denied Cohen’s and Trump’s attempts to slow down the investigation. In a system that disproportionately punishes poor defendants, this action should be lauded. The wealthy’s access to attorneys gives them an added protection during the commission of a crime that most defendants do not have. It is reassuring to see, at least in some cases, the privileged get theirs checked.