Once the warrant has issued, the team conducting the search must “employ adequate precautions” to ensure that the searchers will not improperly view privileged attorney-client communications. The warrant is obligated to designate a “privilege team” consisting of lawyers and agents not working the case, a team tasked with ensuring that the investigators conducting the search do not see privileged communications. Finally, the investigators are required to develop a detailed and thorough review process for every piece of seized material.
These guidelines are draconian, to say the least. Let us assume that, in the Michael Cohen case, the U.S. Attorney’s Office followed the guidelines to the letter, dotting every “i” and crossing every “t.” Even then, there was no guarantee a magistrate judge for the U.S. district court would grant the warrant. That’s how sacrosanct attorney-client privilege is in this country.
The Michael Cohen story, despite the tweet storm and other distracting commentary, is in the end not about the claimed violation of Trump’s purported attorney-client privilege. Instead, it is about something much graver and more threatening to the values of the American legal system — one attorney’s alleged complicity in potential criminal activity.
It should scarcely need to be said that as attorneys, we are not here to facilitate our clients’ violations of the law. Rather, we are privileged to provide a vigorous, ethical defense if we represent the defendant, and, if on the other side, to help achieve justice for those who have been victimized by the illegal actions of others. But never, ever, should we debase our noble profession by using the attorney-client privilege to facilitate illegal acts.