If Trump Is So Worried About Protecting Attorney-Client Privilege, He Should End The NSA's Bulk Surveillance (And CPB Device Seizures)

from the Privilege-for-me-not-for-thee dept

Over the weekend Trump tweeted:

If you can’t read that it says:

Attorney Client privilege is now a thing of the past. I have many (too many!) lawyers and they are probably wondering when their offices, and even homes, are going to be raided with everything, including their phones and computers, taken. All lawyers are deflated and concerned!

Attorney-client privilege is indeed a serious thing. It is inherently woven into the Sixth Amendment’s right to counsel. That right to counsel is a right to effective counsel. Effective counsel depends on candor by the client. That candor in turn depends on clients being confident that their communications seeking counsel will be confidential. If, however, a client has to fear the government obtaining those communications then their ability to speak openly with their lawyer will be chilled. But without that openness, their lawyers will not be able to effectively advocate for them. Thus the Sixth Amendment requires that attorney-client communications ? those communications made in the furtherance of seeking legal counsel ? be privileged from government (or other third party) view.

The problem is, it doesn’t take a raid of a home or office to undermine the privilege. Bulk surveillance invades the sphere of privacy these lawyer-client communications depend on, and, worse, it does so indiscriminately. Whether it involves shunting a copy of all of AT&T’s internet traffic to the NSA, or warrantlessly obtaining everyone’s Verizon Wireless phone call records, while, sure, it catches records of plenty of communications made to non-lawyers (which itself is plenty troubling), it also inherently catches revealing information about communications made to and from lawyers and their clients. Meanwhile the seizures and searches of communications devices such as cell phones and laptops raises similar Constitutional problems. Doing so gives the government access to all records of all communications stored on these devices, including those privileged ones that should have been expressly kept from it.

So Trump is right: attorney-client privilege in America is under attack, and ever since we started learning about these programs lawyers have definitely been worried about how they impose an intolerable burden on the Sixth Amendment right to counsel. But unlike in Trump’s situation where there is serious reason to doubt whether there’s any privilege to be maintained at all (after all, privilege only applies to communications made in the course of seeking legal counsel, not communications made for other purposes, including the furtherance of crime or fraud), and care being taken to preserve what privilege there may be, bulk surveillance sweeps up all communications, including all those for which there is no doubt as to their privileged status, and without any sort of care taken to protect these sensitive communications from the prying eyes of the state. Indeed, the whole point of bulk surveillance is so that the prying eyes of the state can get to see who was saying what to whom without any prior reason to target any of these communications in particular, because with bulk surveillance there is no targeting: it swoops up everything, privileged or not.

If Trump truly finds it troubling for the government to be able obtain privileged communications he could put an end to these programs. It would certainly help make any argument he raises about how his own privilege claims should be sacrosanct rings ring less hollow if his administration weren’t currently being so destructive to everyone else’s.

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Comments on “If Trump Is So Worried About Protecting Attorney-Client Privilege, He Should End The NSA's Bulk Surveillance (And CPB Device Seizures)”

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Anonymous Coward says:

Re: Re: Trump is not concerned about A-C privilege...

What checks and balances? They have all been destroyed, it is nothing but who is on whose side now. There is a reason it is hard to get a President impeached and I am not talking about procedures either.

Wait until the next Democrat or Republican gets into office… Bush sucked, Obama even harder, and now Trump sucks the hardest…

The next guy, regardless of party, is going to Try for even more! The spit, piss, and vinegar each side has for each other has already sealed America to another war. More and more people are leaving the center for either of the R or D extremes as each side lambastes people from any side that does not parrot the ideas they approve of.

If you don’t join our camp, then you might as well be the enemy! That is the ONLY message I am seeing from either side right now and it is a massive turn off.


Re: Re: Re: Trump is not concerned about A-C privilege...

What checks and balances?

Just the usual ones.

Judges won’t do what he wants.

Senators from the other party won’t do what he wants.

Even senators in his own party won’t do what he wants.

You want to mindlessly cling to an unhinged narrative designed to sell you ads rather than acknowledge reality. You’re engaging in mindless political tribalism.

It would be nice if Trump stood up against bulk surveillance. NOBODY else on either side of the aisle seems interested.

Anonymous Anonymous Coward (profile) says:

Crime/Fraud Exception

What Cathy says about the extent of government intrusion into the lives of everyone is true, even if they are lawyers. I think, however, it is important to note that the search warrant for Michael Cohen’s records was likely issued due to the Crime/Fraud Exception where:

Is it even possible for a search warrant of a lawyer’s office? Sure. There is the crime/fraud exception to attorney/client privilege, where a lawyer cannot be party to a client’s crime under cover of the privilege. There is also the possibility that the lawyer, independent of his profession, commits a crime. He no more gets a free ride for committing a crime than anyone else. Such search warrants are rare and disfavored, as they send a chilling message as to the sanctity of the attorney/client privilege. That’s why they are vetted so heavily. People, especially other lawyers, find them extremely unsavory.

So one takeaway is to hire honest lawyers. Stop laughing, I think they do exist, the issue is how to go about finding one. Another is that Trump appears to have hired a not so honest lawyer, and one wonders if he did that on purpose.

Some more information about the Cohen case from Ken White can be found here and here.

Cathy Gellis (profile) says:

Re: Crime/Fraud Exception

I’m not sure it even necessarily reaches the crime/fraud exemption, although I left this point vague in the post. Communications are only privileged when made in the course of seeking legal advice. The DOJ in the Cohen matter seems to be arguing that Cohen wasn’t practicing law, so there were no communications that could be made in the course of seeking legal advice from him.

Anonymous Coward says:

Re: Crime/Fraud Exception

So one takeaway is to hire honest lawyers.

It’s simpler than that: you just have to be honest yourself. If your lawyer commits some crime unrelated to you, you’ll still have A/C privilege. "A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. … The crime-fraud exception also does require that the crime or fraud discussed between client and attorney be carried out to be triggered."

Anonymous Anonymous Coward (profile) says:

Re: Re: Crime/Fraud Exception

Even if you are not part of the crime, but the lawyers is, it still leaves your business where it does not belong. Even with the so called ‘taint team’, or a special master, your stuff is out there and may be seen at some point by your enemies. Those enemies might include a prosecutor who uses parallel construction rather than direct evidence. While I understand the need for the crime/fraud exception, I am very uncomfortable with potential unintended consequences in today’s world.

Anonymous Coward says:

Yes Yes...

the usual, its okay if my guys does it but not if your guy does it tripe.

Attorney Client privilege should never have been a thing… ever! Court should only be about one pursuit, the truth, not as it is now with which side can throw the most money and acrimony against opposing counsel.

But we can’t have that… nothing is about the truth, it is all about advancing the agenda, regardless of the lies or truth necessary to accomplish it. Maybe that is why this place hates Trump… he is a former demo-rat using their tactics to benefit the re-puke party.

Both sides are so filthy and disgusting that it is shocking neither of them recognize all the mud they have on them from wrestling with the pigs while pretending to be on some ambiguous “high road”. All the while saying no… we are not the same as them and retaliating against anyone telling them that… you both look and stink like shit, does it “really” matter if one is donkey shit and the other elephant shit?

Anonymous Coward says:

Re: Yes Yes...

Attorney Client privilege should never have been a thing… ever!

No, it’s there for good reason. There are things that should not be public knowledge, for the same reason we have HIPAA and PCI laws and doctor-patient privilege.

Just like you shouldn’t be able to get medical information about anyone you want, you shouldn’t be able to get any other information about anyone you want. No one needs to have public access to the legal documents setting up a trust fund for your family, or your will/last testament, or your divorce, or any other thing that is legal activity but of a personal or private nature.

Uriel-238 (profile) says:

Re: Cause for Attorney-Client privilege...

Is similar to cause for doctor-patient privilege. If a child gets a sexually-transmitted disease a doctor needs to be able to inform sexual partners without notifying authorities even though a crime has been committed. Otherwise, children end up not seeing doctors, and they and their sexual partners continue to spread STDs.

Without attorney-client privilege, if clients won’t get legal advice if they are afraid they might have committed a crime if the attorney is then obligated to report him. And considering how easy it is to commit crimes (three felonies a day, we average), that would include everyone.

Uriel-238 (profile) says:

Re: Re: Re: Doctor-client privilege AFAIK extends to crimes.

It certainly extends to minors with STDs so that sexually active kids can be treated. On the other hand, some officials (commonly social workers) in some states have anduty to report child abuse (including sexual abuse), say if the partner is a parent figure or a teacher. The problem then is that kids will choose to not report to protect the partner.

Undocumented immigrants are one that varies not just state-to-state but county-to-county. And in the duty-to-report zones, a lot of families choose to self treat or get meds on the black market, perpetuating both drug trade and epidemics. But illegal aliens are a hot topic right now.

I know gunshot wounds must be reported thanks to the war on drugs and the mob shakedowns, and I think that reporting mandate is federal. But again, it mostly created a market for underground medical technicians.

So IMSNHO doctor-patient privilege is generally a good thing, but if our state agencies could become more judicious and composed in how they managed cases, my opinion might change.

Uriel-238 (profile) says:

Re: We have a lot of terrorist-scared officials.

At least I assume they’re so frightened of terrorists that they felt the NSA mass-surveillance program was a good idea, otherwise it would mean they were intentionally looking to sweep out dissenters in the public.

But I remember that Obama and company had concerns that Trump would sweep and clear dissenters. The thing is, although he’s (thankfully) been too incompetent to do so, we’re going to sooner or later elect someone who isn’t, and will.

Uriel-238 (profile) says:

Re: Feinstein and Obama backing mass surveillance

Yeah, Feinstein has been known not to think past her own (personal, short term) interests as far back as when she was Mayor of San Francisco. But Obama is supposed to be a constitutional scholar and should have well known the Palantirs and One Ring corrupt absolutely. Maybe he went Saruman while in office. I remember on many occasions his tune changed between Obama the Candidate and Obama the President.

It’s such a consistent phenomenon, I don’t understand how any American voter would trust a candidate ever to retain integrity once in office. The public memory is embarrassingly fleeting.

Anonymous Coward says:

So skip right over worrying aspects, to BLAME TRUMP FOR NSA.

Another insane — but FREE — post from this person using this raid as only a hook to blame Trump for the Deep State, his enemy!

Yes, now existence of the Deep State, which has been been for over a year making up lies trying to overturn the election and remove a sitting President (whatever his flaws) with sheer outrageous lies, NOW that criminal organization and its efforts is also Trump’s fault!

That’s the state of idiotic double-think this person has.

I’m just surprised that didn’t blame Russia somehow too.

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