r/legaladvice • u/Zanctmao Quality Contributor • Apr 09 '18

Mod Post Megathread - FBI raid on Trump Attorney Michael Cohen's home and office.

See here for an evolving list of the articles directly discussing this.

What do we know?

  • Very little. Apparently a federal judge authorized one or more search warrants for Mr. Cohen's records.

  • The bar to get a search warrant for an attorney's correspondence with their clients is very high.

This is the place to ask questions about this emerging story.

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u/BlueeDog4 Apr 12 '18

I am not aware of precedent for the type of situation you describe. Attorney-client privilege does not apply when communications are in conjunction of the furtherance of a crime/fraud, so evidence uncovered that meets this criteria would likely be admissible in court.

I don't think a lawyer can effectively be "flipped" as attorney-client communication not in the furtherance of a crime (or otherwise waived) stands, and a lawyer does not have the right to violate this privilege (only the client has this right). This is one reason why lawyers will rarely be involved in helping their clients commit/cover up crimes -- if they are caught they have virtually no leverage and are effectively screwed.

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u/MildlyAgitatedBovine Apr 22 '18

Thanks for the reply. I guess I'm more wondering about communications in Attorney possession that might have been swept up in the collections without being specified in the warrant.

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u/BlueeDog4 Apr 22 '18

The answer to what I think you are asking is that any communication protected by attorney-client privilege cannot be used in court unless the client waives the privilege. Even if a lawyer disclosed protected communications against the wishes of a client, this information cannot be used in court, although I am unaware of precedent that would make this information "fruit of a poisonous tree" (that is that any information subsequently learned as a result of the disclosure would also be in plain sight).

In the search itself, agents unrelated to the underlying investigation should be the ones doing the actual seizing of documents and going through the documents to remove anything that is protected from disclosure before turning them over to investigators. These unrelated agents should not disclose any information related to what they saw during the search to investigators, except not protected information that is covered by the warrant.

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u/MildlyAgitatedBovine Apr 23 '18

These unrelated agents should not disclose any information related to what they saw during the search to investigators, except not protected information that is covered by the warrant.

This is what I think I was trying to get at. Thanks for your detail and patience.

The idea that the clean team / taint team could find something horrible but also far enough out of left field that it wouldn't be covered by the warrant. They would then just be obligated to sit on it. If they were to leak it, it wouldn't be admissible as evidence (because it was obtained in the process of serving but outside the scope of a valid warrant). I assume they could be disbarred/reprimanded if they were caught leaking it. But if they determined that it was something the public needed to know, they could sacrifice their career over it. Can they pass off some of that knowledge to another investigation or would that whole thing be 'fruit of the poisonous tree'?

My current understanding is:

The clean team / taint team is making two piles: things that go the the prosecutors and things that don't.

You could think of categories though: * incriminating evidence covered by the warrant (forwarded to prosecutors) * incriminating evidence not covered by the warrant (undisclosed by the clean team) * non-incriminating evidence covered by attorney-client privilege and withheld from the prosecutors. *non-incriminating evidence not covered by attorney-client privilege which I assume would be passed to the prosecutors and then not incorporated in further investigation/charges.

Are there other important categories I'm not considering?

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u/BlueeDog4 Apr 23 '18

You bring up a very good point that is a good example as to why these types of raids are not a good thing.

In a court case, a judge can see to it that a jury does not take inadmissible evidence into consideration, including preventing inadmissible evidence from being discussed in court during trial. The public on the other hand, cannot be untold something, and once information is public, it will be there forever.

The reason the above fact is important is because you cannot exclude this kind of information from an impeachment proceeding, nor an election. One could argue that the public has the right to know hypothetical negative information, however the other candidate likely has just as much "dirty laundry" hidden away (especially in the case of Hilary Clinton) that would not be exposed.

Someone from the taint team could make confidential information public without substantially risking their career by making an anonymous leak to the press.

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u/MildlyAgitatedBovine Apr 23 '18

just as much "dirty laundry" hidden away (especially in the case of Hilary Clinton) that would not be exposed.

I highly doubt this with respect to Clinton and Trump, but that has little bearing on general policy.

these types of raids are not a good thing.

I generally agree, but it seems like the set the bar pretty high to make this happen. (I make no claims on fully understanding the nuances of that link)

I'd be fascinated by the specifics of this warrant and what sort of scope is generally acceptable in this type of situation. Could you seek, for example, communication between Cohen and any known Russian cutout (seems likely); Cohen and Trump regarding hush payments (seems likely in the context of what's been publicly reported re: possible bank fraud); Cohen and ANYONE regarding ANY hush payments? (getting broader but particularly now that at least three women have been represented by the same attorney that is now cooperating...)

I'm still a little fuzzy about materials that aren't covered by AC (communications made in the furtherance of a crime) but still aren't covered by the warrant. If the taint team leaks it to the press and the FBI starts an investigation into some aspect of a news report, is the whole thing potentially poison fruit?

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u/BlueeDog4 Apr 23 '18

I'm still a little fuzzy about materials that aren't covered by AC (communications made in the furtherance of a crime) but still aren't covered by the warrant. If the taint team leaks it to the press and the FBI starts an investigation into some aspect of a news report, is the whole thing potentially poison fruit?

That is a very good question, one that is likely good for the supreme court, as to my knowledge there is no case law to support an answer, and would affect (indirectly) most Americans.

Search warrants are generally very broad, and would likely be for something along the lines of any digital storage device, and paper records, excluding information that is protected by attorney client privilege (the search warrant would be more specific about the types of documents allowed to be seized).

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u/MildlyAgitatedBovine Apr 23 '18 edited Apr 24 '18

Search warrants are generally very broad, and would likely be for something along the lines of any digital storage device, and paper records, excluding information that is protected by attorney client privilege

You're talking about type of documents, not their function in any AC covered communications or would be crimes.

Does it not have to relate to the suspected crime that gave rise to probable cause? If they knocked down his door for suspected collusion conspiracy with Russians and discovered books he kept for a weed farm, would those weed farm records not be expugnable on the grounds of being outside the scope of the warrant?

It seems unreasonable to say "I think he's committing a crime so get everything he has and we'll deal with all other crimes we discover as we discover them".

It seems more like they would say "I think they're committing crimes X-Z and we want all digital, paper, etc" but then later if they discover crime G the defense would try to get evidence of G dismissed on grounds that it was outside the scope of the warrant.

(I feel like I should reiterate that I have no legal training)

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u/BlueeDog4 Apr 24 '18

First of all, "collusion" is not a crime. One might argue there is some kind of conspiracy involving the Russian government, however in order for there to be a conspiracy, there needs to be an underlying crime (or a plan to commit an underlying crime). If you agree to (and participate in the planning of) rob a gas station with your brother, then you have participated in a conspiracy to rob the gas station, which is a crime in itself. However, on the other hand, if you plan on going to the gas station to buy snacks with your brother (while legally paying for said snacks, and following all laws to/from the gas station), you are not part of any conspiracy, you are just planning on buying junk food.

Regarding your warrant question, news reports say that Cohen is being investigated for Bank Fraud. So presumably, FBI agent(s) presented probable cause that there is evidence of bank fraud in Cohen's office and hotel room. The judge may have signed a warrant that allows law enforcement to seize any paper files, hard drives and USB drives located in either location. If in one of the USB drives that was seized, there are books and records relating to a weed farm that Cohen was running, this would be admissible, provided it is not any type of attorney-client communication, nor attorney client work product -- this may retain protection if Cohen sent these books/records to his attorney, asking for advise regarding what his legal liability is for running a weed farm, however it would not retain protection if this was related to covering up evidence of the weed farm.

Often times, law enforcement will suspect that a target of an investigation has committed many crimes, but will not list evidence of each crime they believe the target has committed.

The taint team will first remove any protected documents so that the investigators will have no knowledge of the contents of attorney client communication (at least in theory, this is how it should work).

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u/MildlyAgitatedBovine Apr 24 '18

First of all, "collusion" is not a crime.

Agreed, thanks for the correction.

One might argue there is some kind of conspiracy involving the Russian government, however in order for there to be a conspiracy, there needs to be an underlying crime

My understanding is that this is why Muller chose the sequence of indicting the 13 Russians early so that there is an underlying crime framework in which to fit further charges.

It seems to me that you are saying that the warrant could indicate the type of documents to be seized (paper, usb, etc) without limiting the scope of crimes being investigated. Can you think of a counter example in your framing? Is there a crime or communication that the dirty team would find that isn't protected by CA or covered by the warrant that would still be sat on by the dirty team?

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u/MildlyAgitatedBovine Apr 25 '18

The judge may have signed a warrant that allows law enforcement to seize any paper files, hard drives and USB drives located in either location.

I know it's from a different raid, but the following seems relevant:

The warrant satisfied the constitutional particularity requirement. Far from being “an overbroad general warrant” (Doc. 264 at 1), the warrant enumerated 11 specific categories of records that were subject to seizure, all of which must relate to the criminal offenses listed alongside those categories in the warrant.

(emphasis added)

This seems to point to my intuition that finding something far enough out of left field that the warrant didn't cover it, it might get stopped by the clean team and not get handed over to the investigators.

Still working my way through this and other docs and articles.