Attorney-Client Confidentiality Has Limits

The Trump-Cohen Predicament

The FBI raid on the office, home, apartment and safety deposit box of Attorney Michael Cohen and the seizure of his files, hard drives and recordings sure has caused a lot of consternation in Washington. 

As a former criminal defense lawyer, I can say with certainty that to obtain judicial approval for a search warrant application targeting a lawyer’s office, any lawyer’s office, the prosecutor has to go above and beyond the usual showing that evidence of a crime is probably located in the place to be searched. The application must also show that the lawyer whose files and records are to be seized was both aware that the criminal activity documented in his files took place and that he was either directly involved in the criminal activity or that his services were being used to shield the criminal activity. 

These extra hurdles exist to protect one of the most sacrosanct legal protections, the confidentiality of attorney-client communications. The things clients tell and give to their lawyers are protected from forced disclosure so that the lawyer can expect honesty from his clients and be better prepared to defend their interests. These communications are protected first by the rules of evidence that prevent the information in the lawyer’s files from being used against the client in court and also prevents the lawyer from being compelled to be a witness against his client. The confidentiality of attorney-client communications is also protected by rules governing lawyer conduct and provides an additional barrier to disclosure of information the lawyer obtained from or about the client. 

Using these protective rules, some organized criminal elements began to hire lawyers to help them conduct illegal activity and protect against the lawyer becoming a government informer. Recall the days of the mob families with their lawyer consiglieries made famous in the Godfather and you get the idea.

In order to prevent lawyers from providing cover to or profiting from illegal activities by their clients, courts and legislatures changed the rules of evidence to add a “crime-fraud” exception to the attorney-client privilege and bar associations changed their ethical rules to prohibit the same kind of activity. 

The approval of the search warrant for Attorney Cohen’s files and documents added an additional level of judicial scrutiny because it had become well known that Mr. Cohen’s main client was the President of the United States for many years prior to his recent election and had continued in that relationship after the election as well. 

There is yet another layer of confidentiality in play. Normally, lawyers are loath to make public statements about representation of their clients. Making confidential information public, removes the privilege that otherwise might have prevented forced disclosure of the information. Additionally, lawyers do not usually make public disclosures about confidential information involving their clients without first discussing the pros and cons of the disclosures with and obtaining the client’s consent to the disclosures in advance. Once the Stormy Daniels door was opened, it could never be closed. 

Federal search warrants issued for lawyers’ offices involve yet another layer of scrutiny to protect confidential information from being disclosed erroneously. Federal prosecutors use “taint teams” of lawyers who are not involved in the case in which the warrant was used. These teams go through all of the information seized and make an initial determination which evidence falls within the scope of the underlying criminal investigation and then exclude from further examination or use by the prosecution team of evidence related to other clients represented by the lawyer and information unrelated to the criminal activity outlined in the warrant application. 

Attorney Cohen and other lawyers for President Trump asked the supervising judge in the case to let them have the first look at what was seized and make the call about what should be shared with the prosecutor. That request was denied, but the judge still has the option to appoint a completely neutral “special master” to either make the initial review or oversee the work of the “taint team” to make sure the privilege is not violated. 

President Trump’s attack on the FBI’s seizures as “un-American” and against the rule of law demonstrate just how worried he is about what Mr. Cohen’s files and recorded conversations might contain. Many suggest that the material seized may very well be more damaging to the President than anything that might come out of the investigation by Special Counsel Robert Mueller into Russian interference with the 2016 presidential election. So far, President Trump has avoided any direct connection to Russian election fraud even while campaign staff and other subordinates have been indicted and convicted of illegal activities. 

The saga got even more interesting when Mr. Cohen was required to identify his other clients so that the supervising judge could evaluate the scope of his privilege claim. He readily gave up the name of a prominent GOP donor who had retained him to make secret hush money payments to the donor’s mistress who had become pregnant. Cohen initially asked not to divulge the name of the third client, but the judge refused and ordered disclosure. The fact of a lawyer’s representation of a client is not confidential. Mr. Cohen then revealed that his third client was Fox News personality Sean Hannity, one of President Trump’s biggest supporters, who had been railing against the FBI seizures from the minute they took place.

The evidence sought by the search warrant included information related to the now very public payment made by Cohen to adult film actress Stormy Daniels just days before the 2016 election and to other “fixes” Cohen had undertaken on Mr. Trump’s behalf to quash damaging information from coming to light before the election. Federal charges of money laundering, illegal election campaign contributions, and others easily come to mind as possible criminal violations that could land Mr. Cohen behind bars and sweep away what remains of the Trump presidency as well. Time will tell.

A Blue Wave Approaches

Scott Walker is Right

A Blue Wave is Coming                     

Tuesday’s election results, both local and statewide, show that a majority of voters are not happy with the current GOP leadership and policy choices and are looking for more moderate, if not progressive, leadership. The shocking local result was the “yes” vote on the City of West Bend street referendum where voters actually agreed to a modest increase in property taxes to fix too long neglected city streets. 

In a post-election tweet Tuesday night, Governor Walker tried to rally his base with a prediction of a Democratic wave swamping his ship in the Fall and a desperate plea for money after Milwaukee County Judge Rebecca Dallet beat Judge Michael Screnock by double digit numbers.  Walker campaign team staff ran Screncock’s campaign and traditional GOP backers, like the NRA and the Wisconsin Manufacturers and Commerce, contributed vast sums for TV ads, all to no avail. Screnock even lost to Dallet in his own home county. Walker’s pick for a circuit court seat in very red Waukesha County also lost. Dallet ran a liberal backed campaign against special interest money in politics and the current GOP results driven majority on the Court. She won handily in the cities and saw the red turn purple and even blue in many former GOP strongholds across the state. Those defeats sent a clear signal that voters, even in traditionally red areas, are no longer lining up for the Walker/NRA agenda.

In the other statewide race, a last minute liberal led charge saved the State Treasurer from extinction at the hands of the GOP legislative majority. Clearly, the legislative leadership wanted to be rid of their only constitutionally mandated financial watchdog so they could continue to loot the treasury and send tax windfalls to their crony supporters with no one else having a handle on the purse strings. Voters saw through the ploy and rejected the constitutional amendment that would have killed the office. Another blue defeat for the Walker led crew.

Walker’s miscalculation about calling special elections in two districts with vacant legislative seats undoubtedly helped swing voters, especially those feeling disenfranchised by GOP voter suppression tactics. When he lost legal challenges to his decision brought by former Democratic Attorney General Eric Holder, the legislature started to bring forward quickie legislation to change the special election rules only to abandon the effort when Walker caved and called the required special elections. The blatant power grab and disenfranchisement of local voters in those districts showed just how low the GOP leaders are willing to stoop in order to maintain power. 

One of the mantras of the far right ever since the famous “no new taxes” pledge took hold is that voters are sick of increasing taxes. West Bend’s alt-right Mayor and Council were so afraid to raise property taxes to fix the city’s crumbling streets, that they sought cover in the advisory referenda questions the voters answered clearly. The referenda question answers told the Mayor and Council that it would be acceptable to raise property taxes modestly, but not too much, in order to fix the streets and to try and persuade the county to help by sharing part of the county sales tax revenue with the county’s municipalities. District 7 Alderman Adam Williquette’s defeat at the hands of a candidate who ran on a “let’s fix the streets” platform should seal the deal. Time will tell.

The West Bend School Board race brought another bell weather election result. In the recent past, tea party extremists with anti-public school, anti-science agendas, have dominated the board. Last year’s school board election changed the board to a pro-public school, more teacher friendly majority and Tuesday’s election delivered a final and resounding rejection of the evangelical Christian attempt to subvert and privatize our public schools. Chris Zwagart and Kurt Rebholz ran on a pro-teacher, leave curriculum development to the experts and sound governance platform. They brought in convincing majorities against an incumbent who developed an alliance with an anti-evolution, anti-teacher zealot. It should not have been as close a result as we saw, but voters again rejected the extremist positions. One of the issues in the race is what to do about the aging elementary school in Jackson. The new majority has a mandate to fix the problem and the ability to convince majorities in the district to replace the old building with a new one. 

Our new school board majority can reject “no tax increases for schools” arguments by pointing to the 50 plus public school referenda approved by Wisconsin voters on Tuesday while only 6 failed. There is a clear mandate in those results showing property taxpayers are willing to pay more to support quality public education. They supported both operational and capital referenda, some with fairly large price tags, even after the GOP leadership passed new laws making it significantly more difficult for local school boards to raise property taxes for public schools.

Tuesday’s election results continue the momentum from the recent special elections where progressive Democrats made further inroads into previously red districts. It must not go unnoticed that our own Dennis Degenhardt, the former CEO of Glacier Hills Credit Union and Vice-Chair of the Democratic Party of Washington County carried the City of West Bend in the special election for our Assembly seat in the race against former County Board Chair, Rick Gundrum. 

I believe Scott Walker for once. A blue wave is going to swamp his ship in November.