The Attorney-Client Privilege Comes Under Siege

Obscured and nearly lost in a whirlwind of events—the release of snippets from former FBI Director James Comey’s blame-it-all-on-others tell-all, the release of the Department of Justice Inspector General Michael Horowitz’s report on the firing of former FBI executive Andrew McCabe, the allied air-strikes on Syria—the week of April 9 started off with an event that has significantly diminished one of the pillars of American constitutional democracy.

In the pre-dawn hours of Monday, April 9, federal police executed no-knock warrants on the office, home, hotel room, and safe deposit box of ... a major drug cartel boss? A kingpin of La Cosa Nostra? A terrorist mastermind? No, rather they were on an attorney in private practice, Michael Cohen, whose primary client is, and has been for years, Donald J. Trump.

The erosion of our constitutional rights has been an area of concern, with the politicization of the FBI; the drift toward a one-party state, as the Democratic and Republican parties become increasingly indistinguishable; and the steady diminution of our freedom of expression.

How is it possible that in the United States, an attorney’s office and home can be raided by the federal police authority in order to seize documents pertaining to a client’s privileged communications?

Attorneys are the instruments for preserving the rights enumerated in the Bill of Rights, particularly those protecting individuals from the abuses of an intolerant government. The founding fathers understood all too well the abusive measures an intolerant sovereign could visit on sowers of dissent and on inconvenient adversaries.

To prevent the indiscriminate use of police power, and the tossing into dungeons of those with opposing views, the Fourth Amendment protects against unreasonable search and seizure and the Fifth Amendment both protects against double jeopardy and guarantees due process. The Sixth, Seventh, and Eighth amendments all limit the state from using its police powers unjustly.

In addition, the Constitution has been interpreted to guarantee legal representation to all, regardless of one’s ability to pay legal fees—so essential was an attorney’s counsel deemed to be for the preservation of these rights, these limits on the government’s actions.

This constitutional right to effective assistance of counsel can only be meaningfully exercised if it is accompanied by the attorney-client privilege, which assures all individuals that they can confide in their attorneys, with confidence that their communications will not be disclosed to others. This privilege, which appeared as early as 1654 in England, is considered indispensable to the execution of a lawyer’s responsibilities.

In order to circumvent this privilege, the raids seem to have been done on the basis that evidence may exist of a crime that might have been committed by attorney Cohen.

While criminal activity between two individuals cannot be shielded by the privilege, to date there is no indication that the privilege between Trump and Cohen was misused. Rather, what was Cohen’s alleged misdeed? Lying to FBI agents. Had the agents been interviewing Cohen about suspected criminal activity, and had Cohen responded with lies, then prosecuting his falsehoods would be warranted.

However, there is more than a hint of prosecutorial abuse if FBI agents are being used to conduct interviews concerning activities that may or may not cross a line of ethical behavior in order to provide the opportunity for interviewees to shade the truth, then ... “Bang, you’re under arrest. Now it’s cooperate or else.”

This tactic worked with Trump campaign aide George Papadopoulos, and it worked with former national security adviser Mike Flynn. Perhaps it will work with Cohen—special tactics for a special counsel’s special investigation.

The sine qua non of effective representation by counsel has now been undermined. Without attorney-client privilege, protecting these rights has been compromised. And who is it that can so threaten the core principles of our democracy, so much so that even the elected president is made a victim? It is the entrenched bureaucracy, the senior civil servants, the Rod Rosensteins (who approved the raid on Cohen) and the Andrew McCabes, the James Comeys, and the Robert Muellers.

Presidents come and go, but the mandarins remain. Many began their days in the 1970s as radicals and sit-in leaders, then went on to entry-level jobs in Washington offices, then up the ladder to the SES (the senior executive service)—key players in what has been perhaps over-dramatically dubbed the “deep state.”

This designation is bothersome, having as it does the indicia and the aura of conspiracy. Better to call it, simply and accurately, The Establishment, that ensemble of long-serving bureaucrats, academics, and media figures—not unlike The Establishment vilified by activists in the ‘70s. The pendulum has swung, and those self-same activists are now themselves The New Establishment.

Are the April 9 raids and seizures of constitutionally protected attorney work an example of democracy at work, where not even the president is above the law? No, quite the opposite; it demonstrates that not even the president is protected by the law. So powerful is The New Establishment.