The American Civil Liberties Union (ACLU) has published an article celebrating the FBI raid on Donald Trump’s personal lawyer as a victory for the rule of law — not a violation of attorney-client privilege and the president’s constitutional rights.
Earlier this week, the FBI raided attorney Michael Cohen’s office, apartment, and hotel room, seizing materials that included communications from Trump to his lawyer. The government typically cannot have access to those communications. In cases where it is necessary to study such communications, the FBI establishes a supposedly independent “taint team” that sifts through the material and, theoretically, only passes on evidence to prosecutors that does not violate attorney-client privilege.
However, critics allege that there is great potential for abuse, especially in a politically-charged case like this. They point out that such raids on attorneys are very rare, and argue that the president’s Fourth Amendment right to privacy, Fifth Amendment right against self-incrimination, and Sixth Amendment right to counsel have been compromised.
Harvard Law School professor emeritus Alan Dershowitz, one of the country’s foremost defense lawyers and a civil libertarian who supported Hillary Clinton for president, condemned the raid.
“If this were Hillary Clinton being investigated and they went into her lawyer’s office, the ACLU would be on every television station in America jumping up and down,” he told Fox News this week.
However, the ACLU not only condones the raid on Trump’s; it is applauding it.
ACLU legal director David Cole wrote on the organization’s website:
The ACLU is the nation’s premier defender of privacy, and we’ve long maintained that the right of every American to speak freely to his or her attorney is essential to the legal system. These rights are protected by the Fourth, Fifth, and Sixth Amendments, and we are second to none in defending them — often for people with whom we fundamentally disagree.
But we also believe in the rule of law as an essential foundation for civil liberties and civil rights. And perhaps the first principle of the rule of law is that no one — not even the president, let alone his lawyer — is above the law. And no one, not even the president, can exploit the attorney-client privilege to engage in crime or fraud.
The attorney-client privilege has always included a “crime-fraud exception,” which provides that if you are using the attorney-client relationship to perpetrate a crime, there is no privilege.
We don’t know all the reasons and circumstances for the FBI search of Cohen’s office and home. News reports suggest that the focus is on Cohen’s payments to two women, adult film star Stormy Daniels and former Playboy model Karen McDougal to suppress their stories of affairs with Donald Trump, and that these payments may have been illegal. But what is clear is that prosecutors had to overcome high hurdles to obtain the search warrant. That the warrant was issued is not a sign that the attorney-client privilege is dead. It is, on the contrary, a sign that the rule of law is alive.
Notably, Cole did not mention the requirement that search warrants only be issued upon a finding of probable cause. In addition, the government apparently did not exhaust other means of obtaining the same information from Cohen that it seized in the raid.