Trump Fumes Over Michael Cohen Raid: 'Attorney-Client Privilege Is Dead'
President Donald Trump tweeted Tuesday that “attorney-client privilege is dead” a day after the FBI raided the office of Michael Cohen, his personal lawyer.
A TOTAL WITCH HUNT!!!
— Donald J. Trump (@realDonaldTrump) April 10, 2018
Attorney–client privilege is dead!
— Donald J. Trump (@realDonaldTrump) April 10, 2018
The New York Times reported that investigators are examining records related to a payment Cohen made to adult film star Stormy Daniels, whose legal name is Stephanie Clifford, in addition to other unspecified topics.
The raid comes less than a week after Trump publicly denied knowing about Cohen’s $130,000 payment in 2016 to Daniels, who has claimed the money was meant to keep her quiet about an alleged affair she had with Trump in 2006.
Legal experts pushed back on Trump’s claim Tuesday that attorney-client privilege ― a legal safeguard for confidential communications between an attorney and a client ― is “dead.” Attorney-client privilege may be invoked during the pretrial process of obtaining evidence, known as discovery, or when an attorney is asked to testify under oath.
Lawyers, including Daniels’ attorney, Michael Avenatti, disputed the president’s suggestion that the FBI search of Cohen’s office violated the protection. Some pointed to the very high bar the FBI needed to obtain a search warrant of this nature, including getting approval from the U.S. Attorney’s Office for the Southern District of New York.
Geoffrey Berman, the U.S. attorney for the Southern District of New York and a Trump appointee, was recused from the Cohen investigation, ABC News reported. A spokesman for the U.S. attorney’s office would not comment on Berman’s role, or even say whether there was an investigation into Cohen.
I use the attorney-client privilege. I know the attorney-client privilege. The attorney-client privilege is a friend of mine. And the attorney-client privilege is not dead. What is dead is using the privilege to hide illegal acts. And that has been dead for a long time. #basta
— Michael Avenatti (@MichaelAvenatti) April 10, 2018
Remember, folks, this search had to be approved thru DOJ's highest levels AND by a federal judge. Given Trump's, Cohen's & Schwartz's statements about the Daniels NDA specifically, & the wealth of public info about Cohen being Trump's fixer, there would be ample probable cause. https://t.co/xLPHwYj7lq
— Elizabeth de la Vega (@Delavegalaw) April 9, 2018
There are special requirements for authorizing a search warrant of an attorney's office. Both the Assistant AG for the Criminal Division & the Deputy AG signed off on this one, possibly signaling a crime-fraud exception to the usual privilege for attorney-client communications. https://t.co/lTzP2Fmp5W
— Joyce Alene (@JoyceWhiteVance) April 9, 2018
No, there is a crime fraud exception to the attorney-client privilege, as there has been for centuries. Annesley v. Anglesea (1743), 17 How. St. Tr. 1139. https://t.co/M4J5S0o305
— Richard W. Painter (@RWPUSA) April 10, 2018
As tweeted by George Conway, an attorney and the husband of White House counselor Kellyanne Conway, the Department of Justice defines when an attorney can legally be subject to a search.
“There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients,” the Justice Department says on its website.
Amanda Terkel contributed reporting.
This article has been updated to include Berman’s reported recusal.
Love HuffPost? Become a founding member of HuffPost Plus today.
This article originally appeared on HuffPost.