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.
Lawyers across the nation are probably shifting records out of their offices and encrypting and transferring electronic records to off-site storage places.
Yup. I mean the guy was a toxic ACLU lawyer also. But Dershowitz is saying stuff more and more that I’ve never heard him say before. Maybe he’s undergoing a transformation. I hope so. Of course if he goes too far and actually starts arguing on the basis of the Constitution as written and originally understood and intended, his days at Harvard may end fairly quickly.
Of course, that’s the Leftist Academia Establishment’s hold on censorship, especially when it comes to arguments based on our traditional values and the Anglo-American/Judeo-Christian foundations of our country and its founding documents.
However, Dershowitz is so highly respected and relentless that who knows, maybe he could take on the Harvard Establishment and come out a winner. I mean, if Trump could do it politically, maybe a converted Dershowitz could do it academically.
Ding, ding, ding - we have a thread winnah!
Dershowitz voted for Hillary and was a toxic ACLU lawyer. But he is starting to say stuff I’ve never heard him say before. Maybe he’s undergoing a transformation. I hope so. Of course if he goes too far and actually starts arguing on the basis of the Constitution as written and originally understood and intended, his days at Harvard may end fairly quickly.
Of course, that’s the Leftist Academia Establishment’s hold on censorship, especially when it comes to arguments based on our traditional values and the Anglo-American/Judeo-Christian foundations of our country and its founding documents.
However, Dershowitz is so highly respected and relentless that who knows, maybe he could take on the Harvard Establishment and come out a winner. I mean, if Trump could do it politically, maybe a converted Dershowitz could do it academically.
“These tactics are never used against Dems.”
Exactly. In the case of Hillary the FBI helps in destroy evidence and gives her lawyers immunity.
Nonsense.
Douche is long retired. I believe his TV interviews are done from near his Florida retirement home.
Excellent points!
Mueller is playing fast and loose because his goal is not to actually convict Trump of anything in a court of law. If it was the stuff he has done to date would give Trump enough ammo for years of delays and appeals.
He just wants to find some dirt that will serve as an excuse for impeachment.
The answer for that is millions of us in the streets of DC with nooses and pitchforks.
This is the same jerk that penned Sexual McCarthyism during the dark days of Mizz Lewinsky snapping her thong at the husband of the candidate he voted for.
Eff him.
Not even that. It's just to keep these things constantly in the news so people grow weary of it, so that they just want Trump to go away to make it go away.
When in the course of human events, it becomes necessary...
Well, maybe his “retirement” (as a Harvard law Professor?) explains the possible transformation and his possible change of mind. He’s definitely coming out with stuff against the Lying Unconstitutional Left that he’s never come out with before.
Atlas Shrugged..................
...to have a lamp post party.
Won’t do them any good. A blanket warrant covers it all...............
When they remove Trump/Pence they settle back into the Obama Dictatorship
“All animals are equal, but some are more equal than others”. As we suspected, this “set up” of Sessions foolishly recusing himself from the Russia collusion investigation was bullshit because Sessions is still quiet and Mueller has gone WAY beyond the Russia investigation. With “key” Republicans like Trey Gowdy, Sen. Chuck Grassley, Paul Ryan, etc., warning President Trump not to fire Mueller, I am more convinced than ever that the Deep State is being revealed and the sabotage of the People’s will in undermining our government is well under way. I also suspect that the judge who authorized the raid on President Trump’s attorney’s office will now RECUSE himself also, much like the judge from the FISA court. WE......the American people.....are NOT going to take this well.
Not just Lerner. How about hitlery and the DNC attorney who muddled all the payments for the doissier.
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