“There is a crime-fraud exception to attorney-client privilege,”
Weisberg said. “The affidavits that went into the warrant application —
and possibly direct conversations with the judge — would have had to
give at least prima facie reason to believe that the communications,
even where they were privileged, give some indication that Cohen was
involved in committing or planning some kind of fraud.”
https://www.washingtonpost.com/news/politics/wp/2018/04/09/to-search-michael-cohens-home-and-office-the-fbi-had-to-clear-a-higher-than-normal-bar/?utm_term=.429544f6c481
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What does this tell us? First, it reflects that numerous officials — not just Mr. Mueller — concluded that there was probable cause to believe that Mr. Cohen’s law office, home and hotel room contained evidence of a federal crime. A search warrant for a lawyer’s office implicates the attorney-client privilege and core constitutional rights, so the Department of Justice requires unusual levels of approval to seek one. Prosecutors must seek the approval of the United States attorney of the district — in this case the office of Geoffrey Berman, the interim United States attorney appointed by President Trump.
Third, the search suggests that prosecutors most likely believe that Mr. Cohen’s clients used his legal services for the purpose of engaging in crime or fraud. Attorney-client communications are privileged, which is why it’s so unusual and difficult for prosecutors to get approval to search a law office. Justice Department regulations require federal prosecutors to set up a system to have a separate group — a so-called dirty team — review the files and separate out attorney-client communications so that the investigators and prosecutors won’t see anything protected by the privilege.
But if a client is using a lawyer’s services for the purpose of engaging in crime or fraud, there is no privilege. The very aggressive search of Mr. Cohen’s office for attorney-client files suggests that the prosecutors believe they can convince a judge that communications between Mr. Trump and Mr. Cohen fall under the crime-fraud exception. If you think they can’t pull that off, think again — they’ve already done it once: Mr. Mueller persuaded a judge to apply the exception to compel testimony from Paul Manafort’s lawyer, arguing successfully that he engaged her services in order to commit fraud.
Ken White is a criminal defense attorney and former federal prosecutor at Brown White & Osborn LLP in Los Angeles.
https://www.nytimes.com/2018/04/10/opinion/trump-michael-cohen-fbi-raid.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region®ion=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region
