No, the attorney-client privilege isn’t dead, and neither is the crime fraud exception.
ABAJ: How will prosecutors handle privileged documents from Michael Cohen raids? by Stephanie Francis Ward:
President Donald Trump tweeted Tuesday that attorney-client privilege was “dead” after the FBI raid of his personal lawyer Mark Cohen’s New York office and hotel room, where agents reportedly sought records about two women who received payments to keep quiet after claiming they had affairs with Trump.
Experts say it’s quite possible that as Donald Trump was sending the tweet, a team of assistant U.S. attorneys, support staff and FBI analysts were beginning the start of what some see as a tedious yet important job—going through everything the government seized from Cohen, and setting aside any communication covered by attorney-client privilege to ensure that it’s not seen by those assigned to the investigation.
Given the protections that courts provide for attorney-client communications, the U.S. Attorney’s Manual has specific guidelines for searching a lawyer’s premises, and its first direction is that less intrusive ways of getting documents, like requesting voluntary cooperation or using subpoenas, are preferable. Searches are appropriate if the government thinks that less intrusive means could compromise a criminal investigation or prosecution or result in the destruction of evidence.