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President Trump and the Attorney-Client Privilege
Townhall.com ^ | April 19, 2018 | Judge Andrew Napolitano

Posted on 04/19/2018 8:04:51 AM PDT by Kaslin

A few weeks ago, President Donald Trump was an outwardly happy man because of the utterance of one solitary word from the lips of special counsel Robert Mueller to one of Trump's lawyers. The word that thrilled the president and his legal team was "subject."

It seems that Mueller and one of Trump's lawyers had been negotiating the terms under which the president would submit to an informal interrogation by Mueller and his team of prosecutors and FBI agents. Mueller's request for such an interview was not unusual.

Investigators are usually looking to trap an unwary potential defendant into lying to them -- a crime in that environment, even though the potential defendant is not under oath -- or unwittingly admitting to them an allegation for which they need proof. The potential defendant often believes -- foolishly, as history has shown -- he can actually talk the investigators out of indicting him.

In preparation for this type of interview, the government often tells the lawyer for the person being interviewed whether that person is a witness, a subject or a target. A witness is a person whose knowledge and memory the government wishes to examine. A subject is a person whose behavior is under criminal investigation. A target is a person whom the government plans to indict.

When Trump and his team learned that he was just a subject and not a target, they rejoiced. And then, in a series of bizarre events, all hell broke loose, and his joy turned to gloom. Here is what happened.

In the course of its continuing investigation of Trump, Mueller's team came across evidence of criminal behavior on the part of Michael Cohen, Trump's longtime New York City lawyer. Because the evidence was related to activities that took place in New York City, Mueller sent the evidence to the chief federal prosecutor in Manhattan.

After a team of federal prosecutors there examined whatever Mueller brought them, in conjunction with what they already knew about Cohen, they applied to a federal judge for search warrants of venues where they believed Cohen kept files of his work. The search warrants were executed simultaneously at 5:30 in the morning two Mondays ago.

Cohen's lawyers then filed a motion that asked a federal judge to prevent the federal prosecutors in Manhattan from examining what the FBI seized -- enough to fill a small pickup truck -- arguing that it was Cohen's records of the legal work he had performed for his clients and thus was protected by the attorney-client privilege.

In opposition to Cohen's motion, federal prosecutors argued that Cohen and Trump have engaged in behavior together that may have been criminal or fraudulent and that they used the attorney-client privilege to mask their communications.

The federal prosecutors also argued that Cohen was not truly performing legal work for Trump; rather, they said, he was a fixer of Trump's image and a trickster to Trump's adversaries. Then they revealed that the source of their purported knowledge of the Trump-Cohen relationship was surveillance of Cohen, whose telephone calls, emails and text messages the feds had been capturing for months.

That means that federal prosecutors have overheard the president of the United States in telephone conversations he believed were protected by privilege, in which he was talking to a man under criminal investigation who he has said was his lawyer.

When all this came to a head this past Monday in the federal courtroom of Judge Kimba Wood, she confronted a legally unusual situation. Trump's lawyers demanded that everything seized from Cohen be turned over to Trump because he was and is -- as far as Trump knew -- Cohen's sole client.

Cohen claimed he has three clients, and he demanded that all that was seized be examined by a neutral special master to determine what is privileged and what is not. The prosecutors demanded that they have access to all that was seized, because the seizure had already been approved by another federal judge when he signed the search warrants that triggered the FBI's seizures.

Judge Wood ordered the FBI to copy all that was seized and send copies to lawyers for Trump and for Cohen and to federal prosecutors; and then the lawyers can argue to the court what is privileged and what is fair game for the prosecutors' use. In the course of those arguments, federal prosecutors will see what was seized, whether privileged or not.

The attorney-client privilege protects from scrutiny or revelation the confidential communications of a client to his lawyer that are integral to the lawyer's legal work for the client. The privilege does not apply to casual conversations between client and lawyer or if the lawyer is doing nonlegal work or if the client is committing a crime, a fraud, a tort or a regulatory violation and is consulting the lawyer about that.

Now we have a very perilous situation for the president. Records of whatever work Michael Cohen has been doing for him in the past 10 years will soon be in the custody of federal prosecutors who expect it to be evidence of wrongdoing on the part of the president himself. These are the best federal prosecutors in the country. They are civil service-protected and can only be fired for cause, and they have been listening to the president's phone calls to his confidant and "fixer" and will soon see the fixer's files.

Has Trump been in cahoots with a bad guy as federal prosecutors have alleged? Is this prosecutorial team in Manhattan more dangerous to Donald Trump than Mueller and his crew in Washington? Was evidence about Trump the real goal of those early-morning FBI raids? Is the president no longer just a subject and now a target of a new team of federal prosecutors? Who can safely confide in a lawyer after this?


TOPICS: Culture/Society; Editorial
KEYWORDS: attyclientprivilege; jamescohen; judgenap; lawyers; michaelcohen; presidenttrump; ruleofmen; trumprussia
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1 posted on 04/19/2018 8:04:51 AM PDT by Kaslin
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To: Kaslin

No one will ever be able to trust their lawyer again. I just hope that the Dems, after eliminating this privilege, will understand that it can now be turned against them.

Oh, and their little trail lawyer voter base will go bankrupt because nobody will trust them.


2 posted on 04/19/2018 8:16:16 AM PDT by McGavin999 ("The press is impotent when it abandons itself to falsehood."Thomas Jefferson)
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To: Kaslin
Very sad. An opportunity to point out the grotesque abuses by both the Judge, Muller and the FBI. There is no “evidence” of criminal wrong doing. There is a manufactured supposition, just like the rest of the investigation, by prosecutor desperate to find anything.

Muller and the Judge Wooed are totally out of control. They know full well if they come back with nothing on Trump their careers are over. The Press and the Left will vilify them mercilessness. They HAVE to manufacture something on Trump to save their butts.

A sad swing and an a huge miss by Judge N on this one

3 posted on 04/19/2018 8:18:17 AM PDT by MNJohnnie ("The political class is a bureaucracy designed to perpetuate itself" Rush Limbaugh)
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To: Kaslin

What, pray tell, has ANY of this to do with Mueller’s investigation into alleged Russian collusion? How has this not violated the scope of said investigation? This “investigation” will go on for decades and produce NOTHING. Perfect example of a political witch hunt and prosecutorial misconduct.


4 posted on 04/19/2018 8:19:35 AM PDT by rjsimmon (The Tree of Liberty Thirsts)
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To: Kaslin

Andrew Napolitanon was and is a poser.


5 posted on 04/19/2018 8:19:55 AM PDT by FlipWilson
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To: Kaslin

Hillary Clinton aide was allowed to claim “Attorney Client” privilege and the Obama FBI said “oh well nothing we can do”.

This is a grotesque abuse of power by an out of control Prosecutor and politically bigoted Judge.

This level of consequences free poltical corruption and abuse of power is going to have devastating consequences for the country if Congress does start acting to reign these two in.


6 posted on 04/19/2018 8:22:39 AM PDT by MNJohnnie ("The political class is a bureaucracy designed to perpetuate itself" Rush Limbaugh)
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To: Kaslin

So, they wire tapped our president’s phone or Cohen’s phone? Was this as a result of the FISA or has been ongoing.

Very clever of them. They get to the president by wire tapping his lawyer.

This is despicable.


7 posted on 04/19/2018 8:23:02 AM PDT by nikos1121
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To: Kaslin

Dear Judge Fraudpaolitano. Quick question. What is the crime? See, when you can always find an alleged crime, you now can always destroy attorney-client privilege. You can always be shown the man and find the ALLEGED crime. For example, you can use process crimes.

So now a prosecutor can pull some minor ALLEGED crime out of their behinds and use it to destroy attorney/client privilege. And if you protest the answer, according to Kimba Wood, is, “well, if you have nothing to hide, what are you afraid of?”

But hey Judge Nap, as long as we get Trump, right? Who care if you may be next.


8 posted on 04/19/2018 8:29:20 AM PDT by FlipWilson
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To: Kaslin

Nothing + nothing is nothing


9 posted on 04/19/2018 8:30:47 AM PDT by Fhios (Mr. Magoo, where are you?)
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To: MNJohnnie

“A sad swing and an a huge miss by Judge N on this one “

“Judge”Nappie is a sad caricature of his former self. He needs to go home and get into bed with his boyfriend and leave the stage permanently.


10 posted on 04/19/2018 8:34:50 AM PDT by vette6387
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To: Kaslin

This is spurring the prosecution of Hillary, McCabe, Mueller, et al. We are going to see some fireworks.


11 posted on 04/19/2018 8:36:34 AM PDT by Louis Foxwell (Islam is Satans finest work. -)
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To: Kaslin

Judge Nappy always takes the side of the libs. I wish Fox would give him the boot.


12 posted on 04/19/2018 8:41:47 AM PDT by lone star annie
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To: McGavin999
"I just hope that the Dems, after eliminating this privilege, will understand that it can now be turned against them."

No it can't, and no it won't.

And the Dems know that.

Helen Keller could see the double-standard that's applied in today's political environment.

13 posted on 04/19/2018 8:41:56 AM PDT by daler
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To: Louis Foxwell
Then they revealed that the source of their purported knowledge of the Trump-Cohen relationship was surveillance of Cohen, whose telephone calls, emails and text messages the feds had been capturing for months

Well, now.

Looks like We the Peasants don't have to pretend that we're bound by the Rule of Men any more...

14 posted on 04/19/2018 9:01:29 AM PDT by kiryandil (Never pick a fight with an angry beehive)
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To: Kaslin
Now we have a very perilous situation for the president.

No, we don't.

We have a very perilous situation for the Swamp and our erstwhile "Masters"...

15 posted on 04/19/2018 9:03:19 AM PDT by kiryandil (Never pick a fight with an angry beehive)
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To: McGavin999

I agree with that obsevation.

Who in their right mind would confide with an attorney, if any prosecutor or judge can just take it from your attorney, and use it against you?

I don’t think that this judge fully realizes just how damaging this precedent is to entire law profession.


16 posted on 04/19/2018 9:08:25 AM PDT by factoryrat (We are the producers, the creators. Grow it, mine it, build it. MAGA!)
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To: McGavin999

No one will ever be able to trust their lawyer again.”””

Or their CPA

Or their doctor

Or their dentist

Or their insurance company

Of their bank

Or or or .......

With the current attitudes of the DOJ, NO ONE in the USA has any privacy any more


17 posted on 04/19/2018 9:18:08 AM PDT by ridesthemiles
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To: factoryrat

The judge who signed the warrant is not a judge, they are a political hack with no understanding of this country or the Constitution that guides it.


18 posted on 04/19/2018 9:22:20 AM PDT by McGavin999 ("The press is impotent when it abandons itself to falsehood."Thomas Jefferson)
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To: Kaslin

When you have a liberal Playboy centerfold for a “judge,” this is what you get -jurisprudence driven by the end (get Trump) justifying the means to reach the objective. The plot is now very familiar. Investigate Cohen for his NY taxi activities and use that as the ruse to scoop up all his attorney-client records, most importantly those of the President. Sound familiar? It’s the same backdoor tactic used in the Flynn, Manafort, Page ‘investigations’ to try to get to Trump. Now, because they have Trump’s personal attorney in the dock, the libs are gleeful and to hell with the Fifth Amendment, attorney-client privilege.


19 posted on 04/19/2018 9:22:59 AM PDT by iontheball (lLL)
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To: factoryrat
I don’t think that this judge fully realizes just how damaging this precedent is to entire law profession.

Actually, I believe that Judge Kimba Wood does realize it. However, bear in mind that the left is driven by ends justifying means, and their end is the destruction of Trump so if that results in damage to the entire law profession, then it's a small price to pay.

No doubt, though, the left figures that after they destroy Trump, they'll reinstitute attorney-client privilege by having their Congressional minions write some new laws to undo the damage they created. To completely sell the farce, they'll not only say they're making attorney-client privilege stronger than ever and throw shade on Kimba Wood to make it look good, but they'll claim to be doing it in the name of the average person having access to proper legal representation which will make the Republicans jump on board lest they look like they're against the average person.

20 posted on 04/19/2018 9:36:12 AM PDT by Dahoser
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