Trump is losing his marbles. He’s been stewing, simmering, and raging ever since the FBI raided the offices and home of his lawyer, Michael Cohen. The raid had to do with Cohen’s business affairs and his $130,000 payoff to porn star Stormy Daniels, among other things, and Trump, Cohen, and various allies seem to be terrified that the seized materials will reveal something incriminating. Trump has even been screaming his fool head off about attorney-client privilege in a sorry attempt to convince the world that the raid was illegal.
Cohen is under criminal investigation (though the DOJ has yet to give specifics on that). Attorney-client privilege applies to legal advice, but don’t tell Trump and his team that. They’ve sent a letter to Judge Kimba Wood, a U.S. District Court judge for the Southern District of New York, asking her to stop the DOJ’s review of Cohen’s materials and give Trump and his team the right to determine what is and is not privileged information.
Seriously. He wants to tell the DOJ what they can and cannot see. What could possibly go wrong?
“The President objects to the government’s proposal to use a ‘taint team’ of prosecutors from the very Office that is investigating this matter to conduct the initial privilege review of documents seized from the President’s personal attorney, Michael D. Cohen.”
A taint team is a team of prosecutors who will go through Cohen’s material and ensure that anything that is truly privileged information is not used or made public. This team is separate and isolated from the agents who are conducting the overall investigation. Trump’s desperate plea to the court shows that he and his team don’t seem to understand how attorney-client privilege works, let alone what a taint team does:
“Various documents that, to a taint team, may appear on their face to be non-privileged may in fact be covered by the attorney-client privilege.”
Do they really think prosecutors on a taint team are simply going to skim documents and determine privilege just on their face? Holy hell. The rest of that paragraph is an explanation and definition of privilege, as if the courts and the DOJ don’t understand this. Trump’s lawyers are seriously among the most incompetent lawyers on the planet.
Furthermore, shortly after the raid, Reuters explained exactly how attorney-client privilege works:
[T]he privilege only covers communications relating to legal advice, said Lisa Kern Griffin, a former federal prosecutor and a professor at Duke University School of Law. It does not protect a person’s discussion of business, personal, or financial matters with a lawyer if they are unrelated to a legal representation.
Crucially, attorney-client privilege also does not apply to communications by a lawyer in furtherance of a crime or fraud.
And should Trump be allowed to determine what is privileged and what isn’t, it’s really difficult to believe that he won’t simply tell the DOJ that everything relating to him is privileged and therefore, they can’t see it at all.
Regarding the raid itself, the letter says, in part:
“It simply cannot be the case that by acting in such an aggressive, intrusive, and unorthodox manner, the government has somehow created an entitlement on its own part to eliminate the President’s right to a full assertion of every privilege argument available to him. Indeed, if the Court were to endorse the use of a taint team under these circumstances, raids of law offices would likely become more commonplace, as they would permit the government to wrest from the privilege-holder the ability, in the first instance, to assert privilege over documents and rightfully withhold them.”
It’s true that searching an attorney’s office is uncommon. It’s actually harder to get a search warrant for an attorney’s office because of privilege, according to the Reuters story:
The U.S. Department of Justice has a policy of only raiding law offices if less intrusive approaches, like issuing a request for documents known as a subpoena, could compromise the investigation or result in the destruction of evidence.
Under department policy, the raid of Cohen’s offices required multiple levels of authorization by high-level officials.
“It is very unusual to take such an action,” said Griffin. “It suggests there is deep criminality at issue and real concern that just asking for the documents won’t be enough to ensure they are turned over.”
Gee, why on earth would they have trouble obtaining what they need from Cohen through less intrusive means? What Trump really wants to do here is prevent that team from seeing anything that might incriminate him. That’s pretty much a given. Whether the court will grant him what he wants is up for debate right now, but make no mistake: He’s more scared of the investigation into Cohen than Mueller’s Russia probe at the moment. He’s terrified of what they might find. We can’t imagine why.
You can read the letter in full here.
Featured image via Gage Skidmore, CC BY-SA 2.0, Wikimedia Commons