. . .It has been long recognized that, for the right to counsel to have any value, clients must have absolute confidence in their ability to communicate confidentially with their lawyers, whether in person, by phone, or on email. That is what is known as the attorney-client privilege, and it is indispensable to the practice of law. After recent events, however, only a fool would place any trust in it.
Like most folks with day jobs, I do not generally follow the ins and outs of the special counsel investigation. But no attorney in America could possibly have missed last month’s news. The FBI, on referral from Special Counsel Robert Mueller, raided the office, home, and hotel room of Michael Cohen, the president’s personal lawyer, and hauled off “thousands if not millions” of pages of documents. In court filings, the feds further revealed that, for weeks prior to the search, they had been secretly reading Cohen’s emails as he was sending them.
Moreover, prosecutors apparently convinced a federal magistrate to issue this warrant on the flimsiest of pretenses—the so-called “crime-fraud exception” to the attorney-client privilege. If media reports are to be believed, Cohen is being investigated for one or more payoffs to old Donald Trump paramours, payments that, because they theoretically benefitted a candidate for president, could be deemed an unreported “in-kind” campaign contribution.
Folks my age and older will remember the ‘90s edition of Mueller, another budding Inspector Javert named Ken Starr. Starr was originally tasked with investigating a shady Clinton land deal but ended up stinging a White House intern into confessing an illicit relationship with the president. He then produced a salacious report that needlessly humiliated and traumatized a young woman, who still seems not to have fully recovered.
But even Starr never raided a law office. At least not that of a living lawyer. He did try to grab the privileged communications of a deceased one: Deputy White House Counsel Vincent Foster. At some point, Starr moved beyond the land deal and took to investigating President Clinton’s firing of the White House’s travel staff, a ridiculous endeavor if ever there were one. When the investigation began, Foster turned to the law firm of Swidler Berlin for legal advice. Nine days later, he took his own life, launching a decade’s worth of conspiracy theories. Starr then tried to subpoena Foster’s privileged communications. (Read more from “Why the FBI’s Raid on Michael Cohen Sets a Dangerous Precedent” HERE)