Trump, the man with a dream of a Wall

[Forty Two]

Like Clinton: guilty of perjury.

I heard the FBI raided Clinton's and the DNC's offices to get the servers and computers that Clinton and the DNC didn't want inspected. I mean, they're nothing if not diligent in their investigations.

[Tero]

Not her. Bill impeachment hearings. Slap on the wrist for lying.

[Forty Two]

Not her. Bill impeachment hearings. Slap on the wrist for lying.

When Trump testifies, we'll see what happens.

[Tero]

Great fun! Looking forward to it!

[Forty Two]

Great fun! Looking forward to it!

Don't hold your breath.

[Seabass]

The Crime-Fraud Exception in the Michael Cohen Case

On Tuesday morning, President Trump reacted to the news that the FBI searched the office of his personal attorney, Michael Cohen, by tweeting “Attorney–client privilege is dead!” On Monday night, he called the search “an attack on our country.” Nothing could be further from the truth. While all the facts are not yet known publicly, all indications thus far are that the search was conducted pursuant to the rule of law, and with sign-offs from Trump appointees.

We don’t say this lightly. The ACLU is the nation’s premier defender of privacy, and we’ve long maintained that the right of every American to speak freely to his or her attorney is essential to the legal system. These rights are protected by the Fourth, Fifth, and Sixth Amendments, and we are second to none in defending them — often for people with whom we fundamentally disagree.

But we also believe in the rule of law as an essential foundation for civil liberties and civil rights. And perhaps the first principle of the rule of law is that no one – not even the president, let alone his lawyer – is above the law. And no one, not even the president, can exploit the attorney-client privilege to engage in crime or fraud.

The attorney-client privilege has always included a “crime-fraud exception,” which provides that if you are using the attorney-client relationship to perpetrate a crime, there is no privilege. You have a right to talk in confidence with your attorney about criminal activity, but you can’t use your attorney to accomplish a crime. A mobster suspected of engaging in bribery can consult his attorney about the facts of his alleged bribery without fear that the attorney will disclose those communications. But he has no right to have the lawyer deliver the bribe for him.

The ACLU has long recognized this exception. In fact, the ACLU cited the crime-fraud exception in our efforts to stop the government from concealing evidence of illegal torture by citing the attorney-client privilege.

While the “crime-fraud exception” is well-established, it is also narrow. And searches of lawyers’ offices should be tightly restricted. The Justice Department’s own guidelines recognize that searching an attorney’s office is not to be done lightly. Unlike ordinary searches, searches of attorney offices require extraordinary approvals from high-level officials – in this instance, from Trump appointees in the Justice Department.

According to the Justice Department’s guidelines on searching the office of an attorney, a “search warrant should be drawn as specifically as possible, consistent with the requirements of the investigation, to minimize the need to search and review privileged material to which no exception applies.” The guidelines go on to say that to protect the attorney-client privilege, “a ‘privilege team’ should be designated, consisting of agents and lawyers not involved in the underlying investigation,” in order to “minimize the intrusion into privileged material.” The burden of proof is on prosecutors to show that they made no use of privileged material and their investigation was not influenced by it. These protections may or may not be sufficient in particular circumstances, but they show that the Justice Department recognizes, and seeks to safeguard, the attorney-client privilege even in those rare circumstances where it seeks to search an attorney’s office.

The New York Times reports that Deputy Attorney General Rod Rosenstein, a Trump appointee, signed off on the search. Indeed, all of the top officials involved in the decision to go forward with the search are Republican: Robert Mueller, Rosenstein, and FBI Director Christopher Wray. The interim U.S. Attorney in Manhattan, Geoffrey Berman, is also a Republican, although he reportedly recused himself. That all of these Republican officials approved the search refutes any suggestion that it is a partisan “attack.” And most significantly, the search was conducted pursuant to a warrant issued by a nonpartisan federal magistrate judge.

We don’t know all the reasons and circumstances for the FBI search of Cohen’s office and home. News reports suggest that the focus is on Cohen’s payments to two women, adult film star Stormy Daniels and former Playboy model Karen McDougal to suppress their stories of affairs with Donald Trump, and that these payments may have been illegal. But what is clear is that prosecutors had to overcome high hurdles to obtain the search warrant. That the warrant was issued is not a sign that the attorney-client privilege is dead. It is, on the contrary, a sign that the rule of law is alive.

https://www.aclu.org/blog/executive-bra ... cohen-case

[Scot Dutchy]

It must be very serious.

[pErvinalia]

They're all Republicans, AND RANKING MEMBERS OF THE DEEP STATE!!

[Brian Peacock]

So now he's tweeting Russia about US military options in Syria. This is a good sign. It means he no longer has contact with his KGB handler.

[Forty Two]

The Crime-Fraud Exception in the Michael Cohen Case

On Tuesday morning, President Trump reacted to the news that the FBI searched the office of his personal attorney, Michael Cohen, by tweeting “Attorney–client privilege is dead!” On Monday night, he called the search “an attack on our country.” Nothing could be further from the truth. While all the facts are not yet known publicly, all indications thus far are that the search was conducted pursuant to the rule of law, and with sign-offs from Trump appointees.

We don’t say this lightly. The ACLU is the nation’s premier defender of privacy, and we’ve long maintained that the right of every American to speak freely to his or her attorney is essential to the legal system. These rights are protected by the Fourth, Fifth, and Sixth Amendments, and we are second to none in defending them — often for people with whom we fundamentally disagree.

But we also believe in the rule of law as an essential foundation for civil liberties and civil rights. And perhaps the first principle of the rule of law is that no one – not even the president, let alone his lawyer – is above the law. And no one, not even the president, can exploit the attorney-client privilege to engage in crime or fraud.

The attorney-client privilege has always included a “crime-fraud exception,” which provides that if you are using the attorney-client relationship to perpetrate a crime, there is no privilege. You have a right to talk in confidence with your attorney about criminal activity, but you can’t use your attorney to accomplish a crime. A mobster suspected of engaging in bribery can consult his attorney about the facts of his alleged bribery without fear that the attorney will disclose those communications. But he has no right to have the lawyer deliver the bribe for him.

The ACLU has long recognized this exception. In fact, the ACLU cited the crime-fraud exception in our efforts to stop the government from concealing evidence of illegal torture by citing the attorney-client privilege.

While the “crime-fraud exception” is well-established, it is also narrow. And searches of lawyers’ offices should be tightly restricted. The Justice Department’s own guidelines recognize that searching an attorney’s office is not to be done lightly. Unlike ordinary searches, searches of attorney offices require extraordinary approvals from high-level officials – in this instance, from Trump appointees in the Justice Department.

According to the Justice Department’s guidelines on searching the office of an attorney, a “search warrant should be drawn as specifically as possible, consistent with the requirements of the investigation, to minimize the need to search and review privileged material to which no exception applies.” The guidelines go on to say that to protect the attorney-client privilege, “a ‘privilege team’ should be designated, consisting of agents and lawyers not involved in the underlying investigation,” in order to “minimize the intrusion into privileged material.” The burden of proof is on prosecutors to show that they made no use of privileged material and their investigation was not influenced by it. These protections may or may not be sufficient in particular circumstances, but they show that the Justice Department recognizes, and seeks to safeguard, the attorney-client privilege even in those rare circumstances where it seeks to search an attorney’s office.

The New York Times reports that Deputy Attorney General Rod Rosenstein, a Trump appointee, signed off on the search. Indeed, all of the top officials involved in the decision to go forward with the search are Republican: Robert Mueller, Rosenstein, and FBI Director Christopher Wray. The interim U.S. Attorney in Manhattan, Geoffrey Berman, is also a Republican, although he reportedly recused himself. That all of these Republican officials approved the search refutes any suggestion that it is a partisan “attack.” And most significantly, the search was conducted pursuant to a warrant issued by a nonpartisan federal magistrate judge.

We don’t know all the reasons and circumstances for the FBI search of Cohen’s office and home. News reports suggest that the focus is on Cohen’s payments to two women, adult film star Stormy Daniels and former Playboy model Karen McDougal to suppress their stories of affairs with Donald Trump, and that these payments may have been illegal. But what is clear is that prosecutors had to overcome high hurdles to obtain the search warrant. That the warrant was issued is not a sign that the attorney-client privilege is dead. It is, on the contrary, a sign that the rule of law is alive.

https://www.aclu.org/blog/executive-bra ... cohen-case

The ACLU is right about the crime-fraud exception to the attorney-client privilege rule, but they go too far when they say that issuing the warrant is a sign that the rule of law is alive. I am surprised by the statement from the ACLU, which would normally descry the secret nature of the warrant.

We have a sealed warrant in a case where the only reasons the ACLU has suggested it's aware of for the issuance of the warrant are illegal campaign contribution violations by Cohen because his firm wrote checks to such folks as Stormy Daniels. That's the "crime" that is alleged to breach the attorney-client privilege to the extent that a no-knock warrant would be issued under seal to raid an attorney's office and seize computers and papers?

"If this were Hillary Clinton [having her lawyer's office raided], the ACLU would be on every TV station in America jumping up and down," - Alan Dershowitz

"The deafening silence of the ACLU and civil libertarians about the intrusion into the lawyer-client confidentiality is really appalling." - Alan Dershowitz

Normally, in this kind of case, a subpoena would be issued for the documents. However, if you got nuthin', and you're reaching for whatever you can find, even something as dumb as a campaign finance violation by a private attorney, then you no knock raid via secret warrant that nobody can know about, and go fishing.

No knock -- Cohen was cooperating in every respect. Was there evidence he would not cooperate with a subpoena? Was there a reason to believe he would secret or destroy evidence? Well, we can't know, because the warrant is under seal.

And, the media is rushing here to do do what? Do the NYTimes, WaPo, MSNBC, CNN, ABC, CBS, NBC have reporters out trying to get copies of the warrant? Interviewing "persons with knowledge of the process" or "officials with knowlege..." to find out the whys and wherefores of the warrant and such? No. If you google it, you find article after article explaining that this kind of raid on an attorney's office "must be" valid and lawful, because, heck, the cops had to present a warrant to the magistrate judge. So, like, it's all legal and stuff.

Come on. I agree with Dershowitz on this -- come the fuck on.

And, the top civil libertarian organization in the country, the ACLU, whose fucking function it is is to distrust the government, and to combat the cops, and to demand the disclosure of warrants, and to hold the government's feet to the fire on the quality of evidence necessary to establish probable cause... what did they say?

Oh, well, you know, it's a secret warrant, but there's an exception to attorney client privilege that might apply, and even though we can't tell what the cops were basing the warrant on, we read some newspapers and they said it's about possible illegal payments about porn star rendezvous, so, the fact that the secret no knock warrant was issued on an attorney's office is not a sign of any concern, no! It's actually a sign that the system is working perfectly!

Come the fuck on.

[pErvinalia]

Was there a reason to believe he would secret or destroy evidence?

Well he's Trump's lawyer, so he's probably dodgy as fuck.

[Forty Two]

I wouldn't doubt that the sealed affidavit supporting the warrant is approximately that.

[Tero]

Trump’s party now:
Ryan will live to fight another day. But make no mistake: His vision of the GOP has taken a backseat to Trump's.

Republicans will enjoy the dinner to end of 2020, leaving Democrats the bill.

[Sean Hayden]

Yeah, I'm surprised the ACLU can print that in good conscience.

[Forty Two]

Well, as someone who is a fan of the ACLU, and as someone who has followed its positions on civil rights issues for the better part of 40 years, I am surprised that they felt the need to issue a press release not only clarifying that there is a very narrow exception to the attorney-client privilege, but declaring that the issuance of a no knock warrant based on a sealed affidavit constitutes evidence that the rule of law is alive and well.

The ACLU has been working against "no knock" warrants for decades, and they have generally viewed them with skepticism and caution, suggesting that issuing warrants allowing cops to bust down the door guns drawn is a recipe for disaster, and questionable constitutionally.

With regard to warrants, the ACLU has fought hard to oppose the government's use of warrants which are more general in character, as the Fourth Amendment was in part designed to eliminate the British practice of "General Warrants" which allowed law enforcement to just go and root through your stuff. The point was that the State has to show a reason to search based on "probable cause" that the place searched contains actual evidence of a crime, and that the language of the warrant - the place to be searched and the stuff to be seized -- must be described with "the most scrupulous exactitude."

Further, sealing of warrants is something the ACLU generally opposes. “Under Virginia law and a long tradition of open judicial proceedings, warrants are public record,” said ACLU of Virginia executive director Kent Willis in a letter to judge asking that warrants be unsealed. https://www.acluva.org/en/press-release ... h-warrants

Also there is a common law and constitutional right of access to search warrants, even pre-indictment, which are public records. If the court is going to seal them, then the court must do so on motion of the government articulating the specific need or reason to seal the documents, and that should be done on record.

There are many cases where the press and other interested persons have filed motions to unseal the documents, so that they can report on issues.

Here, we have the press not investigating what might be in the warrants, and not bringing actions to try to unseal the documents. Instead, they are writing articles defending the process, and suggesting that even though we don't know what the fuck is going on, the process "must" be on the up-and-up because somebody had to get a magistrate judge to issue the warrant.

I mean, such backwards logic is unbelievable. Of course! In every case where a warrant is issued, someone must get the judge to sign a warrant, but these fuckers sign warrants constantly and they simply rely on the representations of the prosecutor and the cops or FBI agents. They'll address anyissues of overreach later.

We have a special prosecutor here who is supposed to be investigating illegal collusion with Russia, if any. He is authorized, of course, to take action on other illegal stuff he runs across in the investigation too. They have that catch-all, but the purpose of the investigation at its core was supposed to be illegal collusion by the President with a foreign power, not whether he committed a campaign finance violation.

That being said, we have the special prosecutor allowing or authorizing his folks to secretly get a warrant, from a magistrate judge, to - under seal -- so nobody can see why they are doing this, and what the are searching for, issue a no knock warrant on the President's personal attorney, and the only possible crime we know of is that Cohen's payment of $130,000 to Stormy Daniels may have been a campaign finance violation which is punishable by a fine.

Surely, something smells funny here, doesn't it?