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In the wake of the FBI raid on his attorney, President Trump has said that attorney-client privilege is dead. Undoubtedly that is an exaggeration, but it brings up a fair question:

Has attorney-client privilege been handled in a consistent and impartial manner in the Trump and Hillary Clinton investigations?

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    Re "But Trump's exaggerations often seem to have a kernel of truth...", perhaps you would care to cite an example or two? Because I really can't think of any. – jamesqf Apr 12 '18 at 6:25
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    Simply put attorney-client privilege doesn't count when the investigation is into crimes committed jointly by the attorney and client. – user Apr 12 '18 at 8:34
  • @jamesqf -- that's a different discussion. I'll remove it from the question. – William Jockusch Apr 12 '18 at 10:09
  • The top answer is fairly comprehensive, but I believe you may get equally as good an answer, possibly with cited precedent, from law.se – Gramatik Apr 13 '18 at 19:00
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The Ryan Lucas NPR article cited already answered this:

But that doesn't mean that attorney-client privilege is a magical blanket that covers any and all scrutiny. It doesn't. There are, in fact, a number of exceptions.

Perhaps the most frequently cited is known as the "crime-fraud exception." Boiled down to the basics, this says that discussions between a lawyer and client about a future crime or fraud are not privileged. Conversations about past crimes, however, are.

So a mafia boss can't send an email to his attorney that says, "I want you to arrange the murder of my enemy" and then keep that email out of evidence in court by citing attorney-client privilege.

Sandick points to a few other notable exceptions. If a lawyer is communicating with a third party, for example, those conversations are not privileged. Or if a lawyer is giving business advice, that is not protected either.

Therefore if Trump or some person close to Trump engaged Cohen as a "fixer", tasked with persuading or coercing certain parties into concealing reports of some embarrassing debauch or unlawful deed, (via threats of litigation or by providing hush money then drafting possibly unactionable NDAs, or maybe via other even more unorthodox methods), such fixitious communications would not be protected.

The same article outlines the painstaking formal methods by which seizures of privileged materials are separated from unprivileged materials without injustice:

Now, back to the question of attorney-client privilege: If investigators seize privileged materials, such as electronic communications, in a raid, that kicks into gear a special process that creates a "clean team" to review those items.

"This is an independent team, typically comprised of lawyers and investigators, that will review the seized documents for any privileged information," says Michael Moore, a former U.S. attorney for the Middle District of Georgia.

"They will then isolate that information from the regular investigative team. In essence, they wall themselves and the information they find that might be privileged off from the investigation."

The goal is for the clean team to protect a defendant's right to enjoy the privileged communications with an attorney — while the team can see materials protected under the privilege as it goes through the evidence, the lawyers prosecuting the case cannot.

(Engineers and programmers may recognize the technique as being quite similar to clean room design, used to reverse-engineer BIOS functions and OS hooks while avoiding copyright infringement.)

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  • Few points. 1 - investigators cannot even look at privileged communications, and you have to read it to see if it is a privileged message. Who does the reading? 2 - what is the crime in paying off porn actress? Because that needs to be the presumption in looking for messages to or from her (which is the stated reason for seizure). 3 - aside from any potential crime in there how it is a part of investigation of collusion between Trump and Russia, which is the reason for mueller's existence as special counsel? – user10424 Apr 11 '18 at 15:54
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    @AcePL None of these points are relevant to the question or the answer. You seem to be more concerned with making a political point than with getting the question author the answer they are looking for. – Philipp Apr 11 '18 at 15:59
  • @Philipp those points raise issues that cause the answer to not really answer the question. Which is about double standards in treating the c-a-p of persons in question, not the C-A-P itself. – user10424 Apr 11 '18 at 16:16
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    @AcePL, Re "Who does the reading?": please see revised answer. – agc Apr 11 '18 at 17:47
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    @AcePL Try actually finding out how to back up your claims, rather than just constantly spitting out your preexisting misinformed opinion. Everything was done in accordance with DoJ policies and rather thoroughly detailed case law from the supreme court regarding the seizure of evidence from an attorney. Cohen's defense team will of necessity try to pursue various angles to have evidence from the search invalidated, but this will most likely be on procedural and technical grounds ("this phrase here is too vague") rather than constitutional ones (this is already settled precedent). – zibadawa timmy Apr 13 '18 at 2:01
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I like your question. I don't know why someone voted it down, though it might be better for legal than political. The opening question "is it dead" is too broad but you make it nice and specific here:

it seems fair to ask whether or not attorney-client privilege has been handled in a consistent and impartial manner in the Trump and Hillary Clinton investigations

I hate to answer a question like this as I'm a legal-noob, but this USA-today article seems to address your question pretty well.

As noted in some of the answers above, attorney-client privilege doesn't apply if the client and the attorney conspire to break a law.

"How would they know" - fair question.

"How do they avoid obtaining privileged and protected information?" - also a fair question.

The article points out that warrants (as opposed to subpoenas) are issued if there is fear that documents will be destroyed. It's rarely done that a warrant is issued for a law office, but if a federal judge OK's it, it's legal.

it's very unusual for the Department of Justice to permit prosecutors to raid an attorney’s office and that’s because you want to be careful not to get privileged material," said Litman, who teaches at the UCLA School of Law and continues to practice at the law firm Constantine Cannon.

"In order to get the OK to raid Cohen's office, prosecutors would have had to get approval from high up — in this case from Deputy Attorney General Rod Rosenstein — and demonstrate to a federal magistrate both probable cause and the need for a warrant instead of a subpoena (such as a concern that Cohen might destroy evidence), Litman explained."

In addition, the probable cause would have to relate to a crime centered on Cohen, not Trump or someone else. "You can’t use it as end run around to get to the client," Litman said.

So, in short, if they think a lawyer has broken the law, and they have sufficient evidence to get a warrant and they believe that lawyer might destroy his records, then it's perfectly legal to investigate that lawyer.

"But, OK, so the lawyer broke the law, what about all the stuff the client told the lawyer that was privileged?"

All of that's still privileged. What's not privileged is when the client and the lawyer conspire to break the law together.

from the article:

There will also be a "taint team" to examine everything before it is handed over to prosecutors to make sure that those conducting the case never see any material that might be "tainted" by attorney-client privilege.

The only way the prosecution would be permitted to examine any material that might otherwise fall under the attorney-client umbrella is if it is determined to be part of a crime jointly undertaken by the attorney and the client. But for the privilege to be nullified under the "crime-fraud exception," Litman said the taint team would have to get the approval of the court before the material could be presented to the prosecution.

I used to work in investment banking and we had something called a wall, between those who had inside information (investment bankers) and those who didn't (traders/debt/equity floors and research). There's something like that here, where the people who read what they find in Cohen's office, pick out what they think falls outside of attorney client privilege, give that to a judge, who, if it meets approval, then and only then, Team-Mueller gets to read it.

As far as I can see, it's all legal, all straight up and in no way a violation of attorney-client privilege. Now, if documents are slipped under the wall - so to speak, that would be a violation. If deputy attorney general Rod Rosenstein did this as a favor to Mueller, not because the warrent was warrented, that would arguably be a witch hunt, but if the wall was respected, not a violation of attorney-client privilege.

And if stuff is leaked that should be kept private, that's unethical and a smear campaign. But my understanding, as long as the warrant was offered based on good evidence and in good faith and as long as the wall is maintained, then attorney-client privilege was in no way violated.

I find your point on Hillary interesting, because, despite all the talk, James Comey concluded his investigation fairly quickly. Guilty by association is different than violation of attorney client privilege. I think, in both Trump and Hillary's cases, there's a lot of "He's guilty/she's guilty" before the verdict is in. I don't know enough about the various Hillary situations to know if attorney-client privilege ever came up. In Trump's case, as he said it in direct response to the Warrant and "Raid" on Cohen's office just a couple days ago, it's much easier to pin-down.

All this is basically what AGC said. I'm not sure I added anything other than quoting a different article. I think he gave a good answer.

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    Good answer, however, from POV of constitutionalists like Alan Dershovitz, the concept of "taint team" is unconstitutional because they are agents of government and that alone prevents them from even looking at privileged communications, let alone pick what is and what's not relevant. As for the HRC - her attorney was found to be committing a crime of obstruction of justice but was immunized by FBI. – user10424 Apr 12 '18 at 9:11
  • And after that she was acting as HRC's attorney, and her c-a communications (which, we now know was containing conspiracy to commit acrime) was not only not invaded, the evidence of that was returned to her (attorney) exaclty on the grounds of it being c-a-p comms. – user10424 Apr 12 '18 at 9:11
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    @AcePL, Are you talking about this limited immunity deal? "In exchange for giving the laptops they used to the FBI, Mills and Samuelson were given a limited immunity agreement from the Department of Justice, the Democratic source said, that they would not face prosecution for any information that was found on those laptops." cnn.com/2016/09/23/politics/… "the evidence of that was returned to her (attorney) exaclty on the grounds of it being c-a-p comms." How do we know about that evidence if it was returned to her? – Stephan Branczyk Apr 12 '18 at 10:24
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    In any case, "taint teams" seem to predate the Hillary investigation and the Russian investigation by quite a bit, so Trump's supposed "kernel of truth" that this is somehow a new phenomena is patently false. And if materials are returned to Cohen for being client and attorney privilege, I'm sure it will be done so after the taint team has had time to sift through it (just like it was done for Hillary Clinton's lawyer). Fox News seems to be jumping the gun on this one. – Stephan Branczyk Apr 12 '18 at 10:38
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    @userLTK, Just to be clear, I was quoting AcePL in my second quote in my first comment, not CNN. The CNN link pertains only to my first quote. I am still unsure of where AcePL got the idea that the evidence of a crime was returned to Mills if nobody knew what it was (except for the taint team). That sounds like speculation to me. – Stephan Branczyk Apr 12 '18 at 16:46

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