- REUTERS/Jonathan Ernst
- The FBI raid on the offices of Michael Cohen, President Donald Trump’s longtime personal attorney, raises new questions about the legal disposition of Cohen and Trump.
- That’s because the FBI agents have seized “privileged communications” between Cohen and his clients, which may include Trump himself.
- Cohen has been under the microscope after he revealed that he personally executed a $130,000 payment to the adult-film actress Story Daniels – a woman who claims she had a sexual encounter with Trump – on behalf of his client, 11 days before the 2016 election.
- It is not immediately clear what information prompted the special counsel Robert Mueller to tip off prosecutors to pursue search warrants on Cohen.
- But if law-enforcement officials believe they have evidence of a crime that involves communication between Cohen and Trump, the president’s attorney could be called to testify against his client.
The FBI raid on Michael Cohen’s office and hotel room on Monday raises new questions about the disposition of Cohen and his longtime client, President Donald Trump.
During the surprise raid, federal agents seized “privileged communications” between Cohen and his clients, Cohen’s lawyer, Stephen Ryan, said in a statement. Some of those client communications could include work that Cohen has done for Trump.
Cohen is reportedly the subject of an investigation into bank fraud and campaign-finance violations. He’s been under increased scrutiny ever since he revealed he personally executed a $130,000 payment to the porn star Stormy Daniels, the woman who says she had a sexual encounter with Trump. Cohen made that payment 11 days before the 2016 US election.
Cohen has said that he paid the money out of his own pocket, and that Trump had nothing to do with the agreement. Trump echoed the same last week, in his first public comments about the arrangement.
That $130,000 wire-transfer to Daniels, whose real name is Stephanie Clifford, raised alarms on multiple fronts:
- Cohen’s bank flagged the payment as suspicious and notified the US Treasury Department.
- The payment could be considered an in-kind political contribution, which would be problematic because it would be about $126,500 higher than what’s legally allowed in federal elections, according to the Federal Election Commission.
All told, the facts of the case that prosecutors appear to be building around Cohen’s work and those “privileged communications” between Cohen and his clients could, in theory, prompt those prosecutors to call Cohen to testify against his own clients. That may include Trump, potentially opening the vault to sensitive information about his personal finances.
Can a lawyer be compelled to testify against a client?
According to the American Bar Association (ABA), specific legal boundaries have to be breached in order for the attorney-client privilege to be rendered void and force the attorney to testify against the client in a criminal case. It’s called the “crime-fraud exception.”
The crime-fraud exception can only be triggered if the work product between the attorney and client “was actually used in the furtherance of the purported crime or fraud,” the ABA says.
If a client seeks their lawyer’s advice on a matter that could be illegal or expose them to criminal liability, and the client uses the advice to commit a crime or act of fraud, the attorney could be asked to testify against their client. The same applies if the attorney is the one accused of committing a crime or fraud as part of their work for the client.
Two conditions must be met before the crime-fraud exception is triggered. According to the ABA, there needs to be a “reasonable basis” to suspect that:
- The lawyer or client was committing or intending to commit a crime or fraud.
- And the attorney-client work product was used in order to commit the crime or fraud.
There remains much that is still not publicly known about the case prosecutors are building against Cohen – including whether he or Trump acted criminally or fraudulently as part of their attorney-client relationship with regard to the $130,000 payment to Daniels, or any other matter.
But the developments on Monday make it clear that, as this and the other threads surrounding the multiple investigations into Trump and his associates continues, the boundaries of legal precedent are being tested in ways unlike any other point in modern history.