RUTHFULLY YOURS

The FBI raid Monday on lawyer Michael Cohen raises the political and legal stakes in the vast prosecutorial investigation into Donald J. Trump. The probe into allegations of Trump campaign collusion with Russia has careened into a dive into the dumpster of a payoff to a porn actress to keep quiet about an alleged affair with Mr. Trump. This is the way of special prosecutors, and Washington now seems headed toward a fight-to-the-end between the President and his enemies.

The press is reporting that Mr. Cohen is being investigated for possible bank fraud and campaign-finance violations in connection to his $130,000 payment to Stormy Daniels (née Stephanie Clifford ) in October 2016. Mr. Cohen said he made the payment as a personal favor for his friend and client, Mr. Trump.

But if the payment was intended to silence the actress to help Mr. Trump win the election, then it could be considered a campaign contribution that exceeded the donation limit in 2016. As Bradley Smith notes nearby, proving such a crime would be difficult, and former Democratic presidential candidate John Edwards was acquitted in a similar case. But these days in politics anything can be criminalized.

The raid is especially notable, and troubling, for piercing the attorney-client relationship between Mr. Cohen and Mr. Trump. That is a serious step legally, and it typically requires significant evidence to justify. It would also require the approval at senior levels of the Justice Department. The warrant came at the request of the U.S. Attorney for the Southern District of New York in Manhattan on a referral from special counsel Robert Mueller, who could use whatever information the raid generates.

The Fourth and Sixth Amendments prohibit government officials from in any way intruding on the privacy of lawyer/client confidential rights of citizens.

The very fact that this material is seen or read by a government official constitutes a core violation. It would be the same if the government surreptitiously recorded a confession of a penitent to a priest, or a description of symptoms by a patient to a doctor, or a discussion of their sex life between a husband and wife.

The recourses for intrusions on the Fourth and Sixth Amendments are multifold: the victim of the intrusion can sue for damages; he or she can exclude it from use by the government in criminal or civil cases; or the victim can demand the material back. But none of these remedies undo the harm to privacy and confidentiality done to the citizen by the government’s intrusion into his private and confidential affairs.

Many TV pundits are telling viewers not to worry about the government’s intrusion into possible lawyer/client privileged communications between President Trump and his lawyer, since prosecutors will not get to see or use any privileged material. This is because prosecutors and FBI agents create firewalls and taint teams to preclude privileged information from being used against the client in a criminal case. But that analysis completely misses the point and ignores the distinction between the Fifth Amendment on the one hand, and the Fourth and Sixth Amendments on the other.

The Fifth Amendment is an exclusionary rule. By its terms, it prevents material obtained in violation of the privilege of self-incrimination from being used to incriminate a defendant – that is to convict him of a crime. But the Fourth and Sixth Amendments provide far broader protections: they prohibit government officials from in any way intruding on the privacy of lawyer/client confidential rights of citizens. In other words, if the government improperly seizes private or privileged material, the violation has already occurred, even if the government never uses the material from the person from whom it was seized.

There is much speculation as to the significance of the search of the offices and hotel room of President Trump’s lawyer, Michael Cohen. To obtain a search warrant, prosecutors must demonstrate to a judge that they have probable cause to believe that the premises to be searched contain evidence of crime. They must also specify the area to be searched, the items to be seized and, in searches of computers, the word searches to be used.

At least that’s the constitutional requirement in theory, especially where the Sixth Amendment right to counsel is involved, in addition to the general Fourth Amendment right against unreasonable searches. Yet, in practice, judges often give the FBI considerable latitude, relying on the “firewalls” and “taint teams” they set up to protect the subject of the search from violation of his or her constitutional rights.

But the firewalls and taint teams are comprised of government agents who themselves may not be entitled to read or review many of the items seized. It is an imperfect protection of important constitutional rights. That’s why Justice Department officials must be careful to limit the searching of lawyers’ offices to compelling cases involving serious crimes. We don’t know at this point what the prosecutors are looking for but, if it relates to payments made to porn star Stormy Daniels, that would not seem to justify so potentially intrusive a search of Cohen’s confidential lawyer-client files.

It’s Equal Pay Day – an opportunity for activists to raise awareness about the perceived pay gap between America’s working men and women. It’s also an opportunity for politicians to attack gender bias in private companies, as they do throughout the year.

In October, we published our OpenTheBooks Oversight Report – Federal and State Government’s Gender Hiring Gap Oversight Report analyzing payrolls from federal agencies, Congress, the White House, and government positions at the state and local levels. We found it’s still a man’s world in government. Across the board, we found that men significantly outnumber women in the top-paid government positions.

However, it’s important to note that we didn’t find any evidence that men and women in the same position were paid differently – that would be illegal. We didn’t find a gender pay gap, but a gender hiring gap, meaning men far outnumber women in highly compensated executive positions.

For example, in New York City, Mayor Bill de Blasio issues Equal Pay Day proclamations, and, last year, made quite a spectacle hugging the “Fearless Girl” statute that faces the Charging Bull on Wall Street. Yet, 197 out of the 200 top-paid New York City workers are men. In Chicago, Mayor Rahm Emmanuel’s controlled payroll has just 12 females out of the top 100 most highly compensated city employees.

Here’s how some members of Congress are doing on their own executive-controlled payrolls: