As dawn broke this morning, the ranter-in-chief tweeted his first lie of the new day: “Attorney-client privilege is dead!”
Actually, attorney-client privilege is alive and well. It will continue to be invoked without incident umpteen times across the land. Trump’s problem is that consigliere-client communications are not protected when the authorities strongly suspect they are criminal in nature.
And that explains the FBI’s sudden seizing of Michael Cohen’s computer, phone, financial records, and all other manner of communications with the guy he has sworn to take a bullet for. This latest deep dive into the fetid Trump swamp is particularly noteworthy, because it takes a very high bar for a judge to OK a raid on a president’s personal attorney. To supersede attorney-client privilege, there must be compelling belief that either a crime has been committed or that evidence of a crime might be destroyed.
Most importantly, Cohen and Trump are so intertwined that raiding Cohen brings federal investigators to within inches of Trump. Go for it, sleuths.
Monday afternoon, you could read the terror on Trump’s face as he fulminated on live TV. He said the FBI raids were “an attack on our country … an attack on what we all stand for.” Permit me to inject some perspective. When the Japanese bombed Pearl Harbor, that was an attack on our country. When terrorists struck on 9/11, that was an attack on our country. When the Russians invaded our presidential election, that was an attack on our country. But when the FBI gets the green light to conduct a raid, that is the rule of law asserting itself, in defense of what we stand for.
According to long-established Justice Department rules, a client’s lawyer can be subpoenaed or searched when he or she “is believed to be in possession of contraband or the fruits or instrumentalities of a crime.” It’s right there in the U.S. attorneys manual; the link was posted today by George Conway, the husband of famed Kellyanne. (George, a prominent lawyer, has been hammering Trump lately on rule-of-law issues — thanks, George! — which makes you wonder what the heck is happening in the Conway household.)
And the American Bar Association takes its cue from the Justice Department. The ABA agrees that the attorney-client privilege does not apply in cases where “the work product was actually used in furtherance of the purported crime or fraud.” We don’t yet know the scope or nature of Cohen’s purported “crime or fraud” — it reportedly includes his dealings with Stormy Daniels on Trump’s behalf — but the evidence is clearly serious enough to twist the knife. Cohen has been guarding Trump’s secrets for decades. The prospect of spending decades in jail could inspire him to flip on a range of issues, some of them Russia-related.
Trump is pathetically overmatched right now because he can’t control these events. He can’t control these events because he lacks the legal firepower to combat federal investigators. He lacks the legal firepower because at this point no attorney with a stellar reputation in criminal law is willing to work for a serial liar who doesn’t pay his bills. Therefore, as evidenced on camera Monday, Trump has only one immediate recourse: shameless lying.
He assailed the federal investigators as “Democrats all.” For what it’s worth — and lest we forget, the truth doesn’t penetrate the space between his ears — Robert Mueller, who sought advice on whether to raid Cohen, is a Republican. Rod Rosenstein, who decided there was valid reason to conduct the raid, is a Republican. Rosenstein’s decision was approved by FBI director Christopher Wray — a Trump appointee. Rosenstein referred the raid issue to Geoffrey Berman, the U.S. Attorney for the Southern District of New York. Berman, who approved the raid, is another Trump appointee. (This is hilarious: Trump fired Berman’s predecessor, Preet Bharara, having feared that Bharara might do what Berman just did.) And Berman’s search warrant application was approved by a federal magistrate judge who’d been duly confirmed by the U.S. Senate.
That’s how the rule of law works in America. Perhaps that’s not how the rule of law was taught at Trump University, but here in the real world we are fortunate to have it. For now, anyway. Trump doesn’t respect it because he’s clueless about it, and he’s incapable of learning; tribal Republicans will continue to indulge him; and any time now, Paul Ryan and Mitch McConnell will react to the latest developments with the fire and fury of semi-furrowed brows.
All told, Trump has sufficient political cover from his base to move against Mueller, to sanction lawlessness in the service of saving himself. Will he trigger one of the worst constitutional crises in history, or will he blink? The rule of law, and the future of democracy, hangs in the balance.