President Donald Trump tweeted Tuesday that “attorney-client privilege is dead” a day after the FBI raided the office of Michael Cohen, his personal lawyer.
The New York Times reported that investigators are examining records related to a payment Cohen made to adult film star Stormy Daniels, whose legal name is Stephanie Clifford, in addition to other unspecified topics.
The raid comes less than a week after Trump publicly denied knowing about Cohen’s $130,000 payment in 2016 to Daniels, who has claimed the money was meant to keep her quiet about an alleged affair she had with Trump in 2006.
Legal experts pushed back on Trump’s claim Tuesday that attorney-client privilege ― a legal safeguard for confidential communications between an attorney and a client ― is “dead.” Attorney-client privilege may be invoked during the pretrial process of obtaining evidence, known as discovery, or when an attorney is asked to testify under oath.
Lawyers, including Daniels’ attorney, Michael Avenatti, disputed the president’s suggestion that the FBI search of Cohen’s office violated the protection. Some pointed to the very high bar the FBI needed to obtain a search warrant of this nature, including getting approval from the U.S. Attorney’s Office for the Southern District of New York.
Geoffrey Berman, the U.S. attorney for the Southern District of New York and a Trump appointee, was recused from the Cohen investigation, ABC News reported. A spokesman for the U.S. attorney’s office would not comment on Berman’s role, or even say whether there was an investigation into Cohen.
As tweeted by George Conway, an attorney and the husband of White House counselor Kellyanne Conway, the Department of Justice defines when an attorney can legally be subject to a search.
“There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients,” the Justice Department says on its website.
Amanda Terkel contributed reporting.
This article has been updated to include Berman’s reported recusal.