Alan Dershowitz On Cohen Raid
SCOTT SIMON, HOST:
Of course, we've been talking about President Trump's actions overseas. Let's now move to the crisis he faces at home. There was a raid this week on the office of his personal lawyer, Michael Cohen, in New York, and the revelation that Mr. Cohen's been the subject of a months-long criminal investigation.
President Trump was furious. He called the raid an attack on our country. Many legal analysts have disagreed. Harvard Law professor emeritus Alan Dershowitz disagrees with them and joins us now. Alan, thanks so much for being with us.
ALAN DERSHOWITZ: Thank you. You know, there's an important issue that hasn't been discussed this morning, and that is under the law of the 2nd Circuit, statements made by one's lawyer can sometimes be attributed to that person, and that puts Trump into an interesting dilemma.
If he denies that Cohen is his lawyer for these purposes, then he loses any claim of lawyer-client privilege. But if he acknowledges that he was his lawyer for these purposes, then statements attributed to Cohen regarding any case involving Trump could be attributed to Trump himself. So he's on the horns of a little bit of a dilemma here.
SIMON: Well, thank you. And, in fact, I had not taken that into my mind. You don't like this raid, right?
DERSHOWITZ: Well, I think raids of lawyers' offices should be reserved for the most extreme cases. And I proposed new legislation, in fact, in an article on the Hill saying that when a raid of a lawyer's office occurs, the raid should be accompanied by a judicial officer - a judge or a magistrate - who can make a preliminary determination as to what material is - I'm not worried about the rights of the allegedly crooked lawyer or doctor or priest.
What I'm worried about is the rights of the innocent client, patient or patent that may be swept up in the raid. And the taint teams that review this consist of FBI agents and U.S. attorneys, and that seems to me like a core violation of the Fourth and Sixth amendments to have government officials reading through material that may turn out ultimately to be privileged and confidential. And just simply saying, oh, it's OK. We're not going to use it in a criminal case, but the risks of leaks are very, very high, and the very fact that government agents are reviewing your most confidential confessions to your priest or statements to your doctor or statements to your lawyer is very troubling.
SIMON: It was a lawful warrant, though, right?
DERSHOWITZ: Well, it was a lawful warrant to get material from Cohen. Question is did it also get material from Cohen's clients? And, you know, those of us who are civil libertarians have never been satisfied with the protections given by lawful warrants. They're very easy to get, and they often cover too much, so civil libertarians should be concerned. Now the ACLU came out in favor of the raid...
DERSHOWITZ: ...Not even neutral - just in favor of the raid, saying it was a good raid.
SIMON: I was going to point that out to you, yeah.
DERSHOWITZ: Right. It supported the rule of law. You know, I've been active in the ACLU for 55 years and was on its national board. I never remember a situation where the ACLU, without considering the implications for civil liberties of innocent people, came out and supported government action. It seems to me that the ACLU is now more interested in getting Trump than they are in protecting the rights of all Americans. It's a scandal, and it's a shame.
SIMON: Professor Dershowitz, another inquiry, which, I guess, might be part of the same ball of wax. We were able to interview Valerie Plame Wilson on the pardon of Scooter Libby, and she believes that the pardon of Scooter Libby had almost nothing to do with her case, or his case for that matter. But it was President Trump's idea to send a signal to Michael Cohen, to Paul Manafort, to perhaps others that they can walk away from this - that he's prepared to pardon them. You had dinner...
DERSHOWITZ: Well, I don't...
SIMON: ...With President Trump. You know him. What's your insight there?
DERSHOWITZ: Well, I don't know him. I've only met him on two - three occasions, and the dinner and my meeting at the White House were primarily about the Middle East and the ongoing effort in the Israel-Palestine conflict, so I'd be speculating. But I do know this - that the efforts to try to get a pardon for Scooter Libby have gone back months and months and months. I know I've been called about it because I worked with Scooter Libby on a couple of cases a long time ago. And so I know it was in the works for a long time.
I have no idea what was in the mind of the president when he issued the pardon, but I know that people have been pressuring him, from both parties, to pardon Scooter Libby. And they thought that President Bush had done an incomplete job simply - because he was the fall guy for a lot of the sins of the Bush administration.
SIMON: According to reports, the materials that they were looking for were - had to do with the "Access Hollywood" tape and the Karen McDougal matter.
SIMON: They're fair game?
DERSHOWITZ: No, no, no. Not good enough to get a search warrant of a lawyer's office. To get a search warrant of a lawyer's office, you should be looking for Mafia-type drug connections, major corporate crimes. To use that nuclear weapon, and it's used very, very rarely - a search of a lawyer's office - on what seem like rather technical criminal charges sounds like a lack of proportion.
SIMON: Thanks very much for being with us, Alan Dershowitz.
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