The Morning Jolt

White House

The Pretty Big Exception to Attorney-Client Privilege

U.S. President Donald Trump in Washington, U.S., April 3, 2018. REUTERS/Carlos Barria
The president implied via tweet that the raid of his lawyer's office violates attorney-client privilege. Did he forget about the "crime-fraud" exception?

Making the click-through worthwhile: Figuring out what has to happen before the FBI can get the authority to raid a lawyer’s office, how James Comey’s past defenders are grumbling about his more political persona and upcoming book tour, and a big twist in an alleged scandal involving a Republican governor.

Sorry Mr. President, but Attorney-Client Privilege Isn’t Limitless.

President Trump on Twitter, 7:07 a.m. this morning: “Attorney–client privilege is dead!”

There has always been an exception to attorney-client privilege, called the “crime-fraud exception,” which applies if the client was in the process of committing or intended to commit a crime or fraudulent act, and the client communicated with the lawyer with intent to further the crime or fraud, or to cover it up. This usually applies to actions like suborning perjury or asking an attorney to present testimony she knows is false, destroying or concealing evidence, witness tampering, or concealing income or assets.

At some point, special counsel Robert Mueller must have come across something that made him suspect Trump attorney Michael Cohen had committed crimes. But Mueller must have also had doubts that he had the authority to pursue them, suggesting that whatever he found, it probably didn’t relate to a “full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election.”

This morning, the New York Times reported that the FBI sought documents that dated back “several years,” meaning whatever they’re investigating, it may date to before Trump’s presidential campaign. The alleged payment to Stormy Daniels is “only one of many topics being investigated, according to a person briefed on the search.”

Mueller referred it to the office of the U.S. attorney for the Southern District of New York, Geoffrey Berman. Berman is a former law partner of Rudy Giuliani and donated $5,400 to Trump’s campaign in July 2016 and gave $5,200 to Senator John McCain’s PAC the year before. In August 2017, Trump personally interviewed Berman, which legal analysts said was “virtually unprecedented.” In January, Attorney General Jeff Sessions announced Berman would be the interim U.S. attorney. Interim U.S. attorneys can serve for 300 days; Berman is awaiting a confirmation vote. (New York senator Kirsten Gillibrand said in January that she would oppose Berman’s nomination, contending he had a conflict of interest on matters related to Trump. Heck of a call, senator.) Either way, we can conclude that Berman is probably not going to casually request a raid of the president’s attorney; claims that Berman is a secret Trump enemy, that he’s got an axe to grind against him, or that he’s part of the “deep state” can be dismissed as nonsense.

Berman and his office had to take the evidence and allegations of crimes by Cohen — about as sensitive and politically-consequential as an allegation can get — up the chain in the Department of Justice, presumably to Deputy Attorney General Rod Rosenstein. Then, once Rosenstein approved, the prosecutors would have to go to a federal judge and demonstrate sufficient probable cause for a warrant instead of a subpoena — i.e., “If we don’t go ourselves and take the documents we want, with no warning, Cohen will destroy them.”

Knowing that this is probably going to be one of the most heavily scrutinized warrants in American history, the judge signed off on it. You have to figure the “i”s are dotted and the “t”s are crossed; no one wants to hide some information that undermines the prosecutor’s argument in a footnote like this is a FISA warrant or something like that.

We’ll see what this raid finds, and what charges, if any, the U.S. attorney’s office brings. But this is not the kind of action any prosecutor takes lightly.

UPDATE 12:45 p.m.: ABC News has learned Geoffery Berman was not involved in the decision to raid Michael Cohen’s office, as he is recused from the case. Others in the SDNY attorney’s office handled the decision.

The Big, Long-In-The-Works Article on James Comey, Political Celebrity

If you haven’t read yesterday’s big article on retired FBI agents who once defended James Comey, and who are now irritated with his last-honest-man-in-Washington, hero to “The Resistance,” mega-book-tour shtick, please do so now.

As Alexandra Brown kindly observed, “This isn’t ‘sources say,’ this is these specific, named people make these specific statements. What a breath of fresh air.”

It’s easier to get eyebrow-raising quotes when you’re interviewing retired FBI agents and not current agents, but if the retired agents aren’t thrilled at the thought of Comey joking around with Stephen Colbert later this month, it’s not hard to imagine a significant portion of current agents share that view.

“This current effort to meet the president in the public square, at his own game of slinging mud and punching and contributing smugness to the debate, it’s a bad look for him,” Gagliano says. “I think it’s going to diminish the FBI, and I think it’s going to diminish whatever’s left of Comey’s reputation.”. . .

“Comey was well liked and well thought of as a director overall by FBI employees, although many former agents believed he crossed the line when he publicly declined prosecution of Hilary Clinton,” Savage says. “Decisions on prosecution strictly are the responsibility of the Department of Justice. When [Attorney General Loretta] Lynch tossed the ball to the FBI and she advised she would abide by the recommendations of the FBI, he should clearly have tossed that ball back across Pennsylvania Avenue to Sally Yates and made sure that a comprehensive prosecutive report was delivered to DOJ from the FBI for their consideration.”. . .

“He put the agency and himself directly in the spotlight, not a good place for us ever to be,” Chacon says. “It now appears that he enjoys the spotlight.”. . .

“If I had any witness in a case, much less a potentially critical witness, who’s making all kinds of public statements about the case, or statements that can be used as evidence of bias against that witness, I’d be quite upset,” he says. “I’m sure Robert Muller is not very excited about this publicity tour. This is all kinds of ammunition that a defense lawyer can later use to discredit his prime witness. Everything that Comey is saying on Twitter and in the book and on this press tour will be material when he’s a witness on any obstruction of justice or anything involving the FBI–White House relationship.”

I suspect the vast majority of FBI agents and officials want to think of themselves as above or beyond America’s partisan divide; they wake up every morning and set out to investigate crimes and enforce the laws, without fear or favor. I believe that most FBI agents do their best to meet this fair-minded standard. But it only takes a few bad examples to shake the public’s faith in the bureau’s lack of partisanship or partiality. How will Americans feel when they see James Comey laughing it up with Stephen Colbert?

About that Missouri Governor with the Allegedly Odd Exercise Suggestions. . .

Remember Missouri Governor Eric Greitens, who allegedly had an affair, tied up the woman, took pictures, and threatened to release the photos if she didn’t keep quiet about the affair?

Greitens’ lawyers just unveiled a heck of a potential doubt about the accuser’s story:

In a court filing dated Sunday, Greitens’ attorneys say the woman testified during a Friday deposition that she never saw Greitens with a camera or phone on the day he is accused of taking a partially nude photo of her while she was blindfolded and her hands bound.

The court filing says the woman also testified that she doesn’t know if her belief that he had a phone was the result of a dream.

A spokeswoman for St. Louis Circuit attorney Kim Gardner said Monday that Greitens’ attorneys had ‘cherry picked bits and pieces’ of the woman’s nine-hour deposition ‘to attack her credibility.’

Prosecutors previously acknowledged that they don’t have the photo. But they could be trying to obtain it. If the photo were taken using a smartphone, it may have been automatically transmitted to cloud-based storage and the government could subpoena a technology company for access to it.

The court filing by Greitens’ attorneys said the woman participated in a lengthy deposition Friday. After acknowledging she hadn’t seen a camera or phone, she was asked if she saw what she believed to be a phone.

“I haven’t talked about it because I don’t know if it’s because I’m remembering it through a dream or I – I’m not sure, but yes, I feel like I saw it after that happened,” she responded, according to the court filing.

Wait, prosecutors don’t have the photo, and they just have her testimony, and she’s saying she “feels” like she saw the photo afterward? I’m not a lawyer, but I think it’s probably a bad sign when a key witness prefaces her description of important details with, “I’m remembering it through a dream.”

Without the blackmail, doesn’t this become a garden-variety married-politician-has-an-affair story, and not a criminal matter?

ADDENDA: Why people don’t take the United Nations seriously: “Syria will next month chair the United Nations disarmament forum that produced the treaty banning chemical weapons.”

If this occurs, Nikki Haley’s gonna smash through the wall like Kool-Aid Man.

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