The American Civil Liberties Union published an unfortunate and unnecessary opinion piece by legal director David Cole late Tuesday afternoon. Cole’s op-ed defends the FBI raid on Michael Cohen‘s office and irresponsibly squanders the ACLU’s authority and brand by playing into the hands of the group’s most cynical detractors.
Cole begins by accurately pointing out that President Donald Trump has a poor-to-nonexistent understanding of the attorney-client privilege. That’s fine and likely true but it doesn’t excuse the rest of what follows. Cole writes, “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.”
As many commentators have pointed out, this isn’t the type of language one usually hears from the ACLU–and provides critics with ammunition that the ACLU resides within the Democratic Party’s veal pen. In any event, this is a stunning rebuke to the basic concepts behind the ACLU’s mission. Here, Cole has eagerly gifted an FBI raid the benefit of the doubt from the nation’s leading civil liberties organization. It’s gross.
After reminding readers that the Fourth, Fifth and Sixth Amendments provide every American a sacred right to freely speak with legal counsel, the former crusading advocate qualifies the ACLU’s support for those amendments. Cole’s
fundraising pitch op-ed continues:
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.
There’s an obvious and pernicious implication here. But let’s pause for a second. No one disputes the idea that the president shouldn’t break the law. Additionally, no one disputes the idea that exploiting privileges to break the law is itself illegal. This isn’t controversial or particularly worthy of comment.
Cole isn’t simply being banal. By reciting the equivalent of the legal alphabet, the ACLU’s legal director is making a barely-veiled assertion that Michael Cohen and Donald Trump did break the law by way of exploiting the attorney-client privilege. That may very well be the case. But reflexively pro-prosecutorial words from the lips of self-professed civil libertarians is a bizarre and grotesque sight to behold.
Dogged in his new role as FBI fanboy, Cole trudges on. He writes:
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.
Here’s another obvious and painfully transparent implication. A quick translation: “Donald Trump is a client and Michael Cohen is an attorney and together they committed crimes, got it? Remember the mafia? The fat one has a consigliere who helps everybody hide the bodies. Have you seen those movies? It’s like that.” Again, all of this is at least semi-plausible. But again, these aren’t the sort of implications we should be hearing from an organization founded to combat the heavy-handed overreach of the U.S. federal government.
After the long and accusatory wind-up, Cole notes, “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.”
Cole cutely cites the Justice Department’s own guidelines on searching attorney’s offices. First of all, paging Hector Barbossa. Second of all, it’s not like prosecutors in the United States have never broken the rules. Contrary to Cole’s breathless recitation of the printed guidelines, many prosecutors in the United States have a well-earned and well-deserved reputation for acting outside the bounds of the Constitution to get results.
An article by the National Association of Criminal Defense Lawyers titled “Challenging the Law Office Search,” describes a typically “narrow exercise” of the crime-fraud exception in real life:
The searching agents, having made their own unguided determination to review every file and every document in the office, ultimately carted off thousands of pages of documents as well as every piece of computer hardware and software in the office, which contained every memo, letter, or other document generated by the firm on its computers for the prior six years.
Cole continues, “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.'”
This is beyond ridiculous. So-called “privilege teams” or “taint teams” are little more than perfunctory. Such teams are tasked with setting up “Chinese walls”–information barriers that theoretically stop one group of government agents and attorneys from passing unauthorized and/or privileged information to other groups of government agents and attorneys involved in the same investigation.
In reality, these teams and their walls are a bit of a joke. (In my experience: a literal joke. The efficacy of privilege teams and information barriers was a running joke in law school. Your mileage may vary.) In any event, the American Bar Association (“ABA”) has long since abandoned the pretense that such walls are anywhere near effective. In a newsletter from 2010, the ABA noted, “The time of the Chinese Wall has passed.”
Again, in theory, a privilege team made up of law enforcement agents and prosecutors could prevent unlawful prejudice. And again, in reality, defendants are given the unappetizing choice of trusting the government or not trusting the government and moving on–effectively, no choice at all.
This is something the ACLU knows and should be willing to highlight. Instead, David Cole has activated his powers of credulity and is lending credence to an extreme theory of benevolent and trustworthy government. Cole acts like these alleged safeguards are durable and binding because it suits his narrative.
To be clear: there’s absolutely no problem with arguing the particular reasons why Michael Cohen’s legal problems are entirely the fault of Michael Cohen. But David Cole doesn’t have any particular reasons. Instead, Cole is gleefully lending the ACLU’s gloss and patina of cross-partisan respectability to federal prosecutors because people are angry with President Trump.
Cole doesn’t have any real argument here other than to trust the process because he doesn’t have access to any more facts than the rest of us. This is beyond the ACLU’s mandate and mars the ACLU’s prestige.
Cole even admits that his knowledge of the Cohen warrant is limited to news reports, yet he’s chosen to blindly defend government action against a potential criminal defendant because Trump issued a characteristically Trumpian tweet? Do better, David Cole. The ACLU deserves better.
[image via Jason Kempin/Getty Images for TBS]
Follow Colin Kalmbacher on Twitter: @colinkalmbacher
This is an opinion piece. The views expressed in this article are those of just the author.