Paul Rosenzweig on Lawfare gives an overview of the crime-fraud exception used in yesterday’s FBI raid on President Trump’s personal attorney’s office. Once he elucidates that for the non-specialist, he gives his opinion:
You can readily imagine other examples of when and how a lawyer’s services might be used to commit a crime. The lawyer helps set up a shell corporation (perfectly legal generally) and the corporation is used to foster a Ponzi scheme. The lawyer is asked about how to secure insurance, but the insurance is then used to collect on an insurance fraud. And so on. In other words, the crime-fraud exception applies when an attorney’s advice is used to futher the crime. Or, as the Supreme Court put it in Clark v. United States, 289 U.S. 1 (1933), “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. He must let the truth be told.”
And that, one suspects, is where the rubber meets the road. It may well be that President Trump sought Cohen’s legal advice regarding the Daniels affair for an illegal purpose (e.g. to avoid federal campaign-finance laws or to conceal the true source of the funds with which she was paid or to threaten her). In that circumstance, it seems clear that the crime-fraud exception might apply—and it appears highly likely that the FBI and the lawyers in New York have made that showing to a federal magistrate. Or, as one observer put it: “Michael Cohen is in serious legal trouble.” President Trump may be as well.
I keep trying to imagine seeing President Trump led off in handcuffs, but I’m not reasonably getting there. Still, as Steve Benen notes, President Trump is facing a tidal wave of scandals, so it may happen. You have to wonder how much of his base would take that to heart, and how many would remain convinced that bumbling, ill-advised amateur is being railroaded – and become embittered.
It’s best to keep in mind that the Democrats are forced to sit on the sidelines and merely offer advice and observation; the key people, the sandpaper on Trump’s ass, are all Republicans or ex-Republicans.
Republicans who remember their first allegiance is to the United States, not to the Presidency. In that respect, they are all truly equals before the law.
