NY Times Editorial: If Trump “has nothing illegal or untoward to hide, why does he care about the [attorney-client] privilege in the first place?”
There isn’t much of a pretense anymore that the Mueller investigation is about alleged Russian campaign collusion.
Maybe it started out about collusion, but it veered off course within a couple of months, when Mueller decided that Paul Manafort needed to be investigated for conduct many years ago having nothing to do with the campaign, or even Russia. Rod Rosenstein created the paperwork in early August 2017 to retroactively expand Mueller’s investigation and justify Mueller conduct that already had taken place.
The raid on Trump personal attorney Michael Cohen’s law office by the U.S. Attorney’s office in the Southern District of New York, was at the referral of Mueller, and signed off by Rosenstein. That raid was a frontal assault on Trump’s business and personal history.
If reporting is accurate, the records seized concerned not just payments to Stormy Daniels, but also the Access Hollywood tape revealed during the campaign. It’s fair to assume that a wide range of records going beyond those salacious topics were grabbed by the FBI, including Trump’s other personal and business dealings over a long period of time.
The seizure of Cohen’s records surely goes more directly to taking down Trump for conduct unrelated to the campaign much less Russian collusion.
The NY Times Editorial Board is honest about the goal, The Law Is Coming, Mr. Trump:
Mr. Trump has spent his career in the company of developers and celebrities, and also of grifters, cons, sharks, goons and crooks. He cuts corners, he lies, he cheats, he brags about it, and for the most part, he’s gotten away with it, protected by threats of litigation, hush money and his own bravado. Those methods may be proving to have their limits when they are applied from the Oval Office. Though Republican leaders in Congress still keep a cowardly silence, Mr. Trump now has real reason to be afraid. A raid on a lawyer’s office doesn’t happen every day; it means that multiple government officials, and a federal judge, had reason to believe they’d find evidence of a crime there and that they didn’t trust the lawyer not to destroy that evidence….
Mr. Trump also railed against the authorities who, he said, “broke into” Mr. Cohen’s office. “Attorney-client privilege is dead!” the president tweeted early Tuesday morning, during what was presumably his executive time. He was wrong. The privilege is one of the most sacrosanct in the American legal system, but it does not protect communications in furtherance of a crime. Anyway, one might ask, if this is all a big witch hunt and Mr. Trump has nothing illegal or untoward to hide, why does he care about the privilege in the first place?
That last highlighted sentence is very instructive. Would the NY Times Editorial Board be willing to give up its attorney-client privilege in litigation against the NY Times? If the NY Times has nothing illegal or untoward to hide, why would it care about the privilege in the first place?
Alan Dershowitz has been a voice of reason as to the harm done to the protection of the attorney-client privilege by the desire to take down Trump,
Many TV pundits are telling viewers not to worry about the government’s intrusion into possible lawyer-client privileged communications between President Trump and his lawyer, Michael Cohen.
But this analysis completely misses the point and ignores the distinction between the Fifth Amendment to the Constitution on the one hand, and the Fourth and Sixth Amendments on the other.
The Fifth Amendment is an exclusionary rule. By its terms, it prevents material obtained in violation of the privilege of self-incrimination from being used to incriminate a defendant – that is, to convict him or her of a crime.
But the Fourth and Sixth Amendments provide far broader protections: they prohibit government officials from in any way intruding on the privacy of lawyer-client confidential rights of citizens.
In other words, if the government improperly seizes private or privileged material, the violation has already occurred, even if the government never uses the material from the person from whom it was seized.
Not surprisingly, therefore, firewalls and taint teams were developed in the context of the Fifth Amendment, not the Fourth or Sixth Amendments. Remember who comprises the firewall and taint teams: other FBI agents, prosecutors and government officials, who have no right under the Fourth and Sixth Amendments even to see private or confidential materials, regardless of whether it is ever used against a defendant.
The very fact that this material is seen or read by a government official constitutes a core violation….
If the ordinary citizen sees that even the president’s confidential communications with his lawyer can be seized and perused, he or she will be far less willing to engage in such communications. As a society we value such communications; that is why our laws protect them and that is why it should be extremely difficult for the government to intrude upon them, except as a last recourse in extremely important cases.
From what we know, this case does not meet those stringent standards….
Someday soon, government is going to have to justify its decision to conduct this raid. I challenge any reader who is not concerned about the raid to honestly answer the following question: If the raid had been conducted on Hillary Clinton’s lawyer’s office and home, would you be as unconcerned? The truth now!
This is an all-out assault on Trump and the election result.
It’s no longer about Russian collusion, if it ever was.DONATE
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