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.
DJT needs to fire then replace them with trusted (is there such a thing?) people who would prosecute those who should be. He needs to ignore the impeachment threats ... cause either way his distractors WILL find some flimsy excuse anyway. He needs to deal with it now ... the longer he waits the harder it will be. He also has to remember that he will not be the last target of this. If this is not dealt with here and now, the next person elected that the Deep state doesn’t like will be put through the same BS. It needs to be dealt with/stopped now ... while we still can sans a shooting CW2
But Clinton also had the media in his corner.
You might be interested to know Douche is a legal advisor to Wikileaks and lives in Boca Raton.
When Obamacare was passed, the will of the people was subverted.
“And where’s the outrage from the lawyers and members of Congress”
And that is another outrage.
Everyone in the Republican party and others who should be standing up for DJT just stand back in silence. Infuriating!
They may have to learn that the hard way.
Electing Obama twice THAT should worry us all.
The left keeps screaming about Russia Russia Russia..I got news for them..we already ARE in Russia..because the tactics used yesterday were Russian tactics, that is what they do..but the left doesn’t care because this was NOT done to them..they are fine and dandy with it as long as its against someone they hate
Yeah, but they can’t show up in the middle of the night and take it if they don’t know where it’s stored.
Notice Dems NEVER have to recuse themselves, or turn over evidence, or anything..they get away with EVERYTHING because they are Democrats
The probable cause evidence is in the warrant applications or affidavits, which have been conveniently sealed from public view.
Sealed warrant applications are a red flag for weak evidence.
By the time Cohen’s lawyers get them unsealed and maybe even quash the warrants, deepstate employees will have already copied the confiscated materials for future leaking to the press.
Trump should hire him to lead up his legal team.
Criminalize the opposition. We’re on the highway to hell.
Well, that tells me something right there.
Dershowitz should offer to represent POTUS (every lawyer in the land should be horrified - and anyonr tjat need a criminal lawyer. If the prosecution thinks you’re guilty precedence is being set to raid your lawyer’s office,
and the U.S. Marshalls should be sent to raid Mueller’s office - and go from there to Robberstieins, maybe even Sessions
The minute Sessions took office and THEN recused himself, POTUS should of fired him - all this wold be moot...
Deep State corruption form stem to stern.
“But Clinton also had the media in his corner.
A huge fact to consider.
Uh oh, Dersh. So when you used to go into the office to discuss something with your client while his teen sex slave Virginia was orally pleasuring him, when you used to stay in and watch, did you watch him get, ahem, happy as his LEGAL ADVISOR? Can you please tell the court what the legal reason for experiencing that moment was? OR WERE YOU IN THERE WATCHING AS A FRIEND?
But the scope of a lawyer’s work is quite broad, encompassing much more than merely giving legal advice.
Just HOW broad, Dersh? When the client hands you an empty room and his sex slave, does your legal work suddenly encompass sex with a child? Because Miss Roberts has sworn she had sex with you at 16 more than 5 times.
Second, the lawyer must be engaged in lawful activities on behalf of the clients. Illegal or fraudulent activities are not covered by the privilege.
Oh, bummer, Dersh. Because in most of the states you had illegal statutory rape with Virginia. So those orgasms in a teen girl were not covered by attorney client privilege. Oh noes! Good thing you are cuddling up to the right wing hosts who don’t believe your penis would EVER lead such a smart man to break the child sex slave laws. I’m sure that good will will last FOREVER. Who would believe a mere WOMAN who is intelligent, believable, and swears under oath you did what you did?
Literally the last honest Democrat of any prominence left in the country.
Maybe he’s undergoing a transformation.
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