After FBI agents raided the office of Trump lawyer Michael Cohen on Monday, President Donald Trump and others raised questions about the dramatic move and whether actions taken by Cohen regarding payments made to Stormy Daniels broke the law.
Usually, information relating to a lawyer’s business is protected by attorney-client privilege, requiring law enforcement officials to get special permission to take the information. According to the Wall Street Journal, the Justice Department must find that the information is key evidence involved in a criminal case, something that is unclear in the instance of Michael Cohen.
While it’s unknown exactly what type of documents were seized from Cohen’s office on Monday, one of Cohen’s lawyers said that “protected attorney-client communications between a lawyer and his clients” were taken in the raid.
The decision to obtain a search warrant is a rare move that raises questions about what federal agents expected to find in Cohen’s office. Justice Department officials typically seek to subpoena documents in similar cases before seeking a warrant.
And information protected by attorney-client privilege would create a flimsy basis for a criminal case, with prosecutors running the risk of having their entire case thrown out depending on what materials are used.
According to a Wall Street Journal report, the Justice Department uses a separate team of lawyers known as “taint teams” to examine obtained documents to determine what can be used in a case, a practice that has been criticized by criminal defense teams.
While attorney-client privilege is designed to protect lawyers and allow them to advise clients without worrying about incriminating information, law enforcement can circumvent the protection if the communications between a lawyer and a client are deemed to be in service to a crime.
Experts have drawn on this information to raise questions about why the FBI opted to raid Cohen’s office and what they found. If it can be proven that Cohen was attempting to commit a crime in his business dealings with clients, then any documents can be used in a case, including ones protected by attorney-client privilege.
But as the details of the warrant against Cohen are unknown, Trump has used the opportunity to bash federal agents and deny any wrongdoing in his communications with Cohen, particularly over the Stormy Daniels controversy.