Worthy reading from former Loudoun Supervisor Stevens Miller
Even before Alan Dershowitz plus a number of pro-Trump attorneys expressed their shock over the FBI raid of Trump Attorney Michael Cohen’s residence, office and hotel room, this attorney, former Loudoun Supervisor Stevens Miller, posted this on Facebook. I am presenting this verbatim with his permission.
As an attorney, I find this deeply troubling.
When the government moves against a person’s lawyer, they make it impossible for that person (and every other person) to have faith in the confidentiality of their communications with counsel. It also tends to signify a fear by the government that they are up against too much lawyer, and are using a trick to force a client who is on a winning path to start over with a new attorney, but with the constant threat that this one’s office will be raided too.
The right to counsel is constitutionally guaranteed. This sort of thing evidences a disregard for that right. Moreover, it can be really dumb. Suppose a critical piece of evidence is obtained by a review of Mr. Cohen’s files, but a court later rules it inadmissible because obtaining it violated someone’s constitutional rights? Absent a convincing and inevitable path that would have led (constitutionally) to the same evidence, a defendant would be effectively immunized against conviction for whatever that evidence proves.
Now, if one were a chess player, one might say that the discovery of damning, but inadmissible, evidence might preclude criminal conviction, but it would not preclude removal from office via impeachment. And, that same one might say that is worth a ruling of inadmissibility if it takes Donald Trump’s finger off of The Button. But I have my doubts that prosecutors play that much chess, and even more doubts that anyone would (or could) orchestrate this action for that purpose.
What we are left with is an extreme example of the government using the warrant process to overcome two fundamental constitutional rights: one, to the effective representation by counsel and, two, to the due process of law.
I will await more details before drawing a conclusion. It is possible that the probable cause needed to support this invasion did exist, was presented to a judge who saw it clearly, and that the warrant was issued constitutionally. For that to be the case, however, Mr. Cohen himself would most likely have to be charged with a crime. If that doesn’t happen (and, frankly, I don’t think it will), then my conclusion will be what it almost always is when a lawyer becomes the target in place of client: this stinks.
I mean, really, what am I supposed to say when a client asks me if I will keep their secrets? Usually, I say this: I am not allowed to disclose anything you tell me without your permission, unless one of these things happens:
1) You tell me you are planning a specific act of violence.
2) You give sworn testimony as I am representing you that you have previously told me would be false.
3) An order compelling me to disclose something is entered as a final judgment in a court of competent jurisdiction, prior to which I will make every effort to oppose such an order.
4) I need to disclose something in order to defend myself against a charge you bring against me of professional misconduct.
Guess now I’ll have to add this:
5) The cops break my door down and take my files with no warning of any kind.
Thus, my caveat. If Cohen is part of a criminal conspiracy with a client, the right to confidentiality can be breached. But remember: FBI would have to show a magistrate that they already had probable cause to believe this was true before any warrant could issue. If that turns out to be based on something solid, and Cohen is charged, this is kosher. If he isn’t charged or, somewhat more subtly, he is charged, but mostly on the basis of what they seized today, and the evidence supporting the claim of probable cause turns out to be something someone named “X” said in the warrant application, then this is pure overreach.
Reid comment and Update: The Washington Post reported the government clarified in a court filing the true nature of the raid, saying it was focused on Cohen’s personal business dealings, not his client relationship with Trump.
However, the article does not indicate what documents were taken and how many of them could be related to the president.
I would venture to guess a number of attorneys, especially defense attorneys, (many of whom are Democrats), also are in shock and horror over what happened in New York to Michael Cohen. But one brave Democratic one here has spoken out.
It’s important to remember this — the president is not above the law but he’s not below the law, either. In other words, justice must be blind, even when it comes to him.