Trump Says ‘Attorney-Client Privilege Is Dead’ After Lawyer’s Office Raided

After his lawyer’s office was raided by the Federal Bureau of Investigation, Donald Trump took to Twitter to declare that attorney-client privilege is now dead — but he’s missing some key details.

Trump addressed the news via Twitter just after 7 a.m. on Tuesday, once again referring to the ongoing investigation as a witch hunt:

The tweets were Trump’s second public comments on the raid. On Monday afternoon, he spoke with reporters and characterized the raid as a break-in and an “attack on our country”:

But despite what Trump may think, attorney client-privilege is not dead and a search warrant is not an “attack on our country.” While the law does afford great protections for the relationship between an attorney and a client, there are limits.

Preet Bharara, the former United States attorney for the Southern District of New York, pointed out the biggest problem with Trump’s tweet:

As Bharara notes, there is a major exception to attorney-client privilege, commonly known as the crime-fraud exception. “The crime-fraud exception means the privilege does not apply to communications between the client and the attorney, if they are evidence of an ongoing crime or fraud, not just a past crime or fraud,” Vanderbilt Law professor Christopher Slobogin told Reuters.

As Kellyanne Conway’s husband pointed out, the DOJ has rules and procedures for obtaining evidence and searching the premises for an attorney:

“There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients,” the U.S. Attorney’s Manual states.

Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search.

Before being granted a search warrant against to be executed against an attorney, “prosecutors are expected to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an attorney actively engaged in the practice of law.”

Following that, the application must be approved by either a U.S. attorney or Assistant Attorney General and the prosecutor must consult with the DOJ’s Criminal Division.