Posted on 04/10/2018 10:32:49 AM PDT by Red Badger
There is much speculation as to the significance of the search of the offices and hotel room of President Trump’s lawyer, Michael Cohen. To obtain a search warrant, prosecutors must demonstrate to a judge that they have probable cause to believe that the premises to be searched contain evidence of crime. They must also specify the area to be searched, the items to be seized and, in searches of computers, the word searches to be used.
At least that’s the constitutional requirement in theory, especially where the Sixth Amendment right to counsel is involved, in addition to the general Fourth Amendment right against unreasonable searches. Yet, in practice, judges often give the FBI considerable latitude, relying on the “firewalls” and “taint teams” they set up to protect the subject of the search from violation of his or her constitutional rights.
But the firewalls and taint teams are comprised of government agents who themselves may not be entitled to read or review many of the items seized. It is an imperfect protection of important constitutional rights. That’s why Justice Department officials must be careful to limit the searching of lawyers’ offices to compelling cases involving serious crimes. We don’t know at this point what the prosecutors are looking for but, if it relates to payments made to porn star Stormy Daniels, that would not seem to justify so potentially intrusive a search of Cohen’s confidential lawyer-client files.
There are, of course, exceptions to the lawyer-client privilege. First, the lawyer must be acting as a lawyer, not as a friend or business associate. But the scope of a lawyer’s work is quite broad, encompassing much more than merely giving legal advice. It includes settling cases by making payments to potential litigants. Second, the lawyer must be engaged in lawful activities on behalf of the clients. Illegal or fraudulent activities are not covered by the privilege. Nor are communications with third persons, such as the lawyer for the other side, though such communications may be covered by the much weaker “settlement privilege.”
Civil libertarians should be concerned whenever the government interferes with the lawyer-client relationship. Clients should be able to rely on confidentiality when they disclose their most intimate secrets in an effort to secure their legal rights. A highly publicized raid on the president’s lawyer will surely shake the confidence of many clients in promises of confidentiality by their lawyers. They will not necessarily understand the nuances of the confidentiality rules and their exceptions. They will see a lawyer’s office being raided and all his files seized.
I believe we would have been hearing more from civil libertarians— the American Civil Liberties Union, attorney groups and privacy advocates — if the raid had been on Hillary Clinton’s lawyer. Many civil libertarians have remained silent about potential violations of President Trump’s rights because they strongly disapprove of him and his policies. That is a serious mistake, because these violations establish precedents that lie around like loaded guns capable of being aimed at other targets.
I have been widely attacked for defending the constitutional rights of a president I voted against. In our hyperpartisan age, everyone is expected to choose a side, either for or against Trump. But the essence of civil liberties is that they must be equally applicable to all. The silence among most civil libertarians regarding the recent raid shows that we are losing that valuable neutrality.
What else does the raid tell us? It seems likely that special counsel Robert Mueller is bifurcating the investigation: He will keep control over matters relating to Russia, the campaign and any possible obstruction. But he has handed over to the U.S. attorney for the Southern District of New York any matters relating to Trump’s personal and business affairs. Mueller will work hand in hand with the New York prosecutors, but they will be in charge of the other matters. If they manage to find prosecutable evidence against Trump’s lawyer, they may try to squeeze him into cooperating against his client.
It is doubtful that Cohen would cooperate, even if he has anything on his client. But prosecutors often try to get lawyers to “sing” against their clients — to become “canaries” — in order to save their own feathers. Some flipped witnesses will tell prosecutors anything they want to hear in order to earn a “get out of jail free card.” They know that the “better” their story, the more leniency they will earn. So, in addition to singing, they “compose” by making up incriminating details.
I have seen this on many occasions. Mueller has already apparently flipped several witnesses, but Cohen would be his biggest catch in the unlikely event he could be induced to turn against his client. So, stay tuned to this unfolding drama, but remember that prosecutorial tactics used today against President Trump may tomorrow be used against Democrats — and even against you.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against BDS: Why Singling Out Israel for Boycott is Anti-Semitic and Anti-Peace.” You can follow him on Twitter @AlanDersh and on Facebook @AlanMDershowitz.
We have devolved into a Banana Republic.
Somebody explain to me where the evidence of probable cause for a crime is in this search warrant because without evidence of probable cause, this warrant is flatly unconstitutional as is most everything surrounding this nonsense.
Dershowitz seems to be waking up to the threat of unconstitutional government.
Thanks, I'll take mine with a lot of mustard.
I’ll give him a pat on the back for getting this right, but how could the guy vote for Hillary Clinton? Surely he must know of her shady criminal-like behavior, and the implications of them. Did he seriously think that “go along to get along person” who agrees with everything Mueller is doing, would be good for the nation?
What a disconnect with reality, to vote for her.
They’re running under the Obama Dictatorship
Douche doesn’t care all that much about the traditional Constitution. His Leftism isn’t nihilist, so he can imagine the same power being used on Trump being used on the next Dem president. He’s afraid of the precedent.
Banana Republic? Yes, I have thought so for several years in fact since the Bushes and earlier.
I don’t think we should give up anything more without a hell of a fight else we will be lost.
I always like hearing what Alan Dershowitz has to say about a matter and respect his insight. But he is incredibly naïve when it comes to how the Left operates. He voted for Obama, then was shocked and angry when Obama screwed over Israel. Now he's shocked that "civil libertarians" aren't defending Trump on the raid of his attorney's office.
He shouldn't be surprised. The civil libertarians are completely consistent. They always were a tool of the Left to beat down traditional institutions. Their goal isn't to defend civil liberties, its to tear down the Right. For some reason Dershowitz doesn't understand this.
So Trump’s lawyer can’t talk?
MSM can’t get a quote from him? The man is speechless?
Literally the last honest Democrat of any prominence left in the country.
Clintons did it.
They and they alone are responsible for the decline in civility and the weaponizing of the various departments of the government to silence and even murder their political enemies.
They are a dangerous duo, and until they are removed from the freedom of the streets they will continue to corrupt every damn thing they can get their filthy money grubbing hands on, and Chelsea as well. She ins not innocent.......................
Have no fear, Jeffy is here!
We might be skipping Banana Republic and going straight to totalitarian hellhole...
Probably under a threat or secret gag order...................
These tactics are never used against Dems.
The FBI is given explicit rights in the US Constitution
overseeing everything else — except what is controlled
by Obama and the Moslem Brotherhood and the Clinton
Foundation. Says so right there in English.
And where’s the outrage from the lawyers and members of Congress
We no longer have the government we were given. All of the basic ideas behind our government are being ignored, and often criticized by BOTH parties. It’s rare that someone stands by principles like this. From congressmen to high schoolers, a majority of almost every group (90+% of media) no longer cares about concepts like
- consent of the governed
- no taxation without representation
- the 1st, 2nd, 4th, 5th, 6th, 9th, 10th amendments
These basic ideas are only praised and accepted in cases where they help _ME_. They are hated when they help _THEM_. Every single issue we fight over is meaningless if the principles we base our arguments on are meaningless. Once the basis of government is meaningless, we have no government of law - only authoritarians who sway like the wind and do what they want. Seeing the limited reaction to this, I think it’s safe to say that we no longer have a constitutional government.
Why didn’t we just have a search warrant for Lois Lerner’s lawyer after she pled the 5th?
Everything is perfectly clear.
Laws and the Constitutional rights means nothing when attacking Republicans.
They are only there to protect Democrats.
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